social, humanitarian and cultural affairs committee...
TRANSCRIPT
BUCHAREST INTERNATIONAL STUDENT MODEL UNITED NATIONS
2014
Social Humanitarian and
Cultural Affairs Committee Espionage ndash Infringement of the Right to
Privacy or Legitimate State Practice
Study Guide
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Contents
Contents 1
Introduction to SOCHUM 3
Espionage ndash infringement of the right to privacy or legitimate state practice 4
Forms of espionage 4
Spying under international law 7
The principle of sovereign equality between states 7
Does transnational espionage breach the non-interference principle 9
Current international context UN actions 10
Other international laws concerning espionage 11
Organizations acting against mass surveillance 13
Suggestions 14
Bibliography 15
Websites 15
Books 15
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Dear delegates
As the chairpersons of the Social Cultural and Humanitarian Committee (SOCHUM) of the
United Nations General Assembly we would like to warmly welcome you to the BISMUN
2014 Conference
We are very excited for this yearrsquos edition therefore we have chosen controversial topics
related to the current international context which will lead to interesting and fruitful debates
We truly encourage you all to participate actively in the committee sessions and come up with
effective policy solutions but apart the academic enrichment we invite you all to create bonds
and friendships which will not be lightly severed in the years to come
During the upcoming week in March you will discuss over the two topics proposed and in
this regard we provide you with comprehensive study guides which will represent the starting
point in your research We strongly recommend you to familiarize with the policy of your
assigned country and develop a position with regard to the topics at hand
Indeed we engage to do our best to guide you towards identifying possible solutions and
writing best resolutions but ultimately itrsquos your benefit to act as real delegates make this
yearrsquos edition everything it should be
We hope we will all have an unforgettable experience and we are looking forward meeting
you all in Bucharest
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Introduction to SOCHUM
The United Nations General Assembly is made up of 30 committees 6 of which are the main
committees The third committee of the UN General Assembly is known as the Social
Humanitarian and Cultural Affairs Committee (SOCHUM) SOCHUM deals with issues
regarding humanitarian affairs and social development By using Special Rapporteurs experts
and the papers of other UN working groups they gather information to keep an eye on the
draft resolutions considered
Under Article 4 of the UN Charter SOCHUM considers ldquoany questions relating to the
maintenance of international peace and security brought before it by any Member of the
United Nations or the Security Councilrdquo SOCHUM is a unique committee in the General
Assembly as it has the jurisdiction to deal with various issues that are sometimes overlapping
with the works of other committees This allows for its resolutions to be extensive and
comprehensive Under the UN Charter all member states and observers of the United Nations
are automatically part of the Third Committee of the General Assembly and have an equal
vote Documents require a simple majority to be passed
SOCHUM as mentioned above deals with various and often overlapping issues This special
authority allows them to examine issues from the rights of indigenous populations children
refugees and other minority groups while tackling the issues of poverty education food and
water shortages as well as representation in the government Although it is unable to impose
sanctions authorize armed intervention or pass binding resolutions the resolutions are
significant and they are able to recommend the Security Council and the Secretariat to
manage specific problems in ways suggested by member states and approved by the
committee As one of the six main committees of the UN General Assembly SOCHUM has
certainly influenced the working of the UN
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Espionage ndash infringement of the right to privacy or legitimate
state practice
ldquoIt is hard to believe that a man is telling the truth when you know that you would lie if you
were in his placerdquo
- H L Mencken
Espionage is not a state practice only of the modern world Its importance in the military
affairs has been recognized since the beginning of the recorded history ldquospying and
surveillance are at least as old as civilization itself1 It is considered one of the oldest most
influential political and military arts From biblical times to present days leaders have
employed espionage on and off the battlefield in the quest of victory This idea was also
reflected by anti-Nazi activist and spy in the World war II Singer Kurt in his book ldquoThree
Thousand years of espionagerdquo ldquothere has never been a war without spies and there never has
been a peace in which spies have not engaged in preparations for a future warrdquo
Espionage can be defined as a form of intelligence gathering conducted by individuals states
or companies and implies the collection of confidential or secret information by varied
methods without the consent of the holder of the information in order to achieve self-
interested goals The distinctive element in comparison with the intelligence gathering
consists of its inherently clandestine character as the last one is considered to be conducted
unlawfully in most of the cases and prohibited by law
Forms of espionage
Although in colloquial terms ldquospyingrdquo is associated with government activities monitoring
on potential or actual enemies invoking national security issues there is also another form of
espionage Indeed espionage is a word that brings in mind well-known James Bond movies
which have shaped a common picture of what an agentrsquos job should involve or spy stories
with John Le Carre but it has also been associated with business With global competition
intensifying private companies spy on their competitors for general market intelligence such
1 Keith Laidler ndash Surveillance unlimited How wersquove become the most watched people on Earth
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
as product features marketing strategies pricing policies or manufacturing programs as parts
of the so-called industrial espionage
On the other hand there are different forms of espionage categorized by the source of the
information- gathering Firstly there is HUMAN INTELLIGENCE often truncated to
ldquoHUMINTrdquo a doctrinal term employed by intelligence services defined as a category of
intelligence derived from information collected and provided by human sources It refers to
information that individuals divulge whether wittingly or unwittingly This form of espionage
indicates the common form of gathering intelligence ndash the one conducted by spies
The issues related with this form of espionage refer to the status of the spies the reliability of
the sources and moreover the collection of data from non-cooperative persons
On the other hand there is the opposite of it the so-called SIGNITELECTRONIC
SURVEILLANCE comprising communications intelligence and electronic intelligence As
the name itself indicates it SIGNIT relies on technological methods to a larger extent such as
communications passed by radio wire or other electromagnetic means electronics
intelligence consists of electromagnetic radiations such as emissions from a radar system The
rapid development of technology determined the advancement use of this form of espionage
at a large scale
Spying ndash both HUMINT and SIGNIT forms ndash have a variable geography
The following table from JOURNAL OF NATIONAL SECURITY LAW amp POLICY (Vol
5179 ) explains it synthetically
Territorial Extraterritorial Transnational
Human intelligence Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place within
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place on the
territory of another
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources in
which the source
(but not the agent)
is located on the
territory of another
state
Electronic Interception of
communications or
Interception of
communications or
Interception of
communications or
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
surveillance actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
takes place within
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
take place on the
territory of another
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
the communication
(but not the
interception) takes
place on the
territory of another
the state
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Spying under international law
The majority of states whether developed or under developed democratic or non ndash
democratic engage in espionage However despite extensive practice there is no legal
specific international instrument regarding on it Espionage is considered by scholars ill-
defined under international law
Even if states conduct it and there is no specific prohibition on it it does not constitute a part
of customary international law The condition of opinion juris (belief that an action was
carried out by states due to an legal obligation) required for the creation of customary
international law under article 38 (1) of the International Court of Justice Statute it is not met
in the case of espionage States do spy but there are not opining that their actions are in
accordance with international law
The question raised should be why states do not formally propose any instruments to
eliminate espionage since their national security and sovereignty are at stake
This issue could be explained by the fact that most domestic legal systems tend to prohibit
intelligence gathering by foreign affairs while not only protecting but also improving the
statersquos own capacity to conduct covert operations abroad
Taking into consideration the events that moved the international community ndash the declaration
made by the whistleblower Snowden about NSA spying operation on world leaders and on the
other hand the worrying facts revealed by the reports made by Privacy International
concerning the industrial espionage there is an urgent need for specific and precise
regulations regarding espionage to ensure a clear understanding on this matter in line with
human rights standards
The principle of sovereign equality between states
Spying might represent an infringement of the principle of sovereign equality between states
enunciated in Article 2 of the Charter of the United Nations The concept of state
ldquosovereigntyrdquo lies at the core of international law and includes among other things the
statersquos ldquoright to exercise jurisdiction over its territory and over all persons and things therein
subject to the immunities recognized by international lawrdquo A state is therefore generally free
to prescribe the forms of surveillance and investigation it wishes in relation to people places
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
and things on its sovereign territory
However the principle of sovereign is not an absolute concept as it does not entitle states to
act discretionary On the contrary each statersquos sovereignty is constrained by doctrines of
international law and obligations assumed under international treaties For instance states
must abide by international human rights obligations in their conduct within their territories
Both HUMINT and SIGNIT may trigger the application of international human rights norms
Taking into consideration that human intelligence implies interrogations it is essential that
this activities be conducted lawfully Concerning electronic surveillance there are issues of
privacy rights and freedom of expression as it involves surreptitious surveillance of
communication or conduct
The uncooperative interrogations become a threatening and prominently issues after the 911
in the context of debates about counterterrorism all over the world The international law
guards against extreme forms of interrogation Both the International Covenant on Civil and
Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (ldquoTorture Conventionrdquo) include a prohibition on both torture and
cruel inhuman and degrading treatment and punishment This international treaties impose
States Member to fulfill its obligation ldquounder the territory of its jurisdictionrdquo and do not
permit any derogation from the freedom of torture and CID treatment ldquoNo exceptional
circumstances whatsoever whether a state of war or a threat of war internal political
instability or any other public emergency may be invoked as a justification of torturehellip An
order from a superior officer or a public authority may not be invoked as a justification of
torturerdquo
Covert electronic surveillance indisputably impairs privacy Privacy rights are enshrined in
international human rights law The most notable international instruments regulating this
right is the International Covenant on Civil and Political Rights (ICCPR) Article 17 of the
ICCPR states that ldquoNo one shall be subjected to arbitrary or unlawful interference with his
privacy family home or correspondence nor to unlawful attacks on his honor and reputation
Everyone has the right to the protection of the law against such interference or attacksrdquo The
provisions of the ICCPR do not offer a comprehensive definition of the concept of privacy In
order to give some clarifications the UN Human Rights Committee reiterated that Article 17
protects against ldquounlawfulrdquo and ldquoarbitraryrdquo intrusion with unlawful meaning that ldquono
interference can take place except in cases envisaged by the lawrdquo and that the law must itself
ldquocomply with the provisions aims and objectives of the Covenantrdquo
Therefore even if the international law does not specifically address the issue of espionage
its norms influence the conduct of such activities
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
To conclude on this point 1) human intelligence cannot be extracted through abusive
interrogation and 2) electronic surveillance of communications or surveillance that amounts
to intrusions into the ldquohomerdquo (including the place of work) must be authorized by law and by
the appropriate official on a case-by-case basis and be reasonable in the circumstances
Moreover regarding the territorial espionage in most of the states the citizens enjoy a
constitutional right to privacy which is binding
In comparison with the territorial spying its extraterritorial form ndash conducted on the territory
of another state ndash it is a more complex issue which determines the analysis of supplementary
international law provisions specially related to sovereignty
The principle of non-interference in sovereign affairs concomitant to principle of sovereignty
is recognized in the UN Charter itself which provides in Article 2(4) that ldquo[a]ll 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 Nationsrdquo Moreover the General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations declares that ldquo[n]o State or group of States
has the right to intervene directly or indirectly for any reason whatever in the internal or
external affairs of any other Staterdquo
Does transnational espionage breach the non-interference principle
Most commonly transnational espionage has been and still is conducted by States invoking
national security issues The main justification concerns the right of self-defense However in
the absence of a legal instrument regulating the specific circumstances and condition in which
spying is permitted to be conducted in self-defense the doctrinal view does not legitimate the
practice of states
On the other hand espionage conducted as preparation for an armed attack may be considered
a ldquothreat or use of forcerdquo precluded by the UN Charter and customary international law It is
therefore a violation of international law unless the use of force at issue is itself authorized by
the Security Council under chapter VII of the UN Charter or is exercised in self- defense
The doctrine is not consistent regarding this matter Intelligence will probably continue to
exist at the edge of international legitimacy However taking into consideration its
importance in international relations the blurred limits should seize to exist
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Contents
Contents 1
Introduction to SOCHUM 3
Espionage ndash infringement of the right to privacy or legitimate state practice 4
Forms of espionage 4
Spying under international law 7
The principle of sovereign equality between states 7
Does transnational espionage breach the non-interference principle 9
Current international context UN actions 10
Other international laws concerning espionage 11
Organizations acting against mass surveillance 13
Suggestions 14
Bibliography 15
Websites 15
Books 15
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Dear delegates
As the chairpersons of the Social Cultural and Humanitarian Committee (SOCHUM) of the
United Nations General Assembly we would like to warmly welcome you to the BISMUN
2014 Conference
We are very excited for this yearrsquos edition therefore we have chosen controversial topics
related to the current international context which will lead to interesting and fruitful debates
We truly encourage you all to participate actively in the committee sessions and come up with
effective policy solutions but apart the academic enrichment we invite you all to create bonds
and friendships which will not be lightly severed in the years to come
During the upcoming week in March you will discuss over the two topics proposed and in
this regard we provide you with comprehensive study guides which will represent the starting
point in your research We strongly recommend you to familiarize with the policy of your
assigned country and develop a position with regard to the topics at hand
Indeed we engage to do our best to guide you towards identifying possible solutions and
writing best resolutions but ultimately itrsquos your benefit to act as real delegates make this
yearrsquos edition everything it should be
We hope we will all have an unforgettable experience and we are looking forward meeting
you all in Bucharest
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Introduction to SOCHUM
The United Nations General Assembly is made up of 30 committees 6 of which are the main
committees The third committee of the UN General Assembly is known as the Social
Humanitarian and Cultural Affairs Committee (SOCHUM) SOCHUM deals with issues
regarding humanitarian affairs and social development By using Special Rapporteurs experts
and the papers of other UN working groups they gather information to keep an eye on the
draft resolutions considered
Under Article 4 of the UN Charter SOCHUM considers ldquoany questions relating to the
maintenance of international peace and security brought before it by any Member of the
United Nations or the Security Councilrdquo SOCHUM is a unique committee in the General
Assembly as it has the jurisdiction to deal with various issues that are sometimes overlapping
with the works of other committees This allows for its resolutions to be extensive and
comprehensive Under the UN Charter all member states and observers of the United Nations
are automatically part of the Third Committee of the General Assembly and have an equal
vote Documents require a simple majority to be passed
SOCHUM as mentioned above deals with various and often overlapping issues This special
authority allows them to examine issues from the rights of indigenous populations children
refugees and other minority groups while tackling the issues of poverty education food and
water shortages as well as representation in the government Although it is unable to impose
sanctions authorize armed intervention or pass binding resolutions the resolutions are
significant and they are able to recommend the Security Council and the Secretariat to
manage specific problems in ways suggested by member states and approved by the
committee As one of the six main committees of the UN General Assembly SOCHUM has
certainly influenced the working of the UN
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Espionage ndash infringement of the right to privacy or legitimate
state practice
ldquoIt is hard to believe that a man is telling the truth when you know that you would lie if you
were in his placerdquo
- H L Mencken
Espionage is not a state practice only of the modern world Its importance in the military
affairs has been recognized since the beginning of the recorded history ldquospying and
surveillance are at least as old as civilization itself1 It is considered one of the oldest most
influential political and military arts From biblical times to present days leaders have
employed espionage on and off the battlefield in the quest of victory This idea was also
reflected by anti-Nazi activist and spy in the World war II Singer Kurt in his book ldquoThree
Thousand years of espionagerdquo ldquothere has never been a war without spies and there never has
been a peace in which spies have not engaged in preparations for a future warrdquo
Espionage can be defined as a form of intelligence gathering conducted by individuals states
or companies and implies the collection of confidential or secret information by varied
methods without the consent of the holder of the information in order to achieve self-
interested goals The distinctive element in comparison with the intelligence gathering
consists of its inherently clandestine character as the last one is considered to be conducted
unlawfully in most of the cases and prohibited by law
Forms of espionage
Although in colloquial terms ldquospyingrdquo is associated with government activities monitoring
on potential or actual enemies invoking national security issues there is also another form of
espionage Indeed espionage is a word that brings in mind well-known James Bond movies
which have shaped a common picture of what an agentrsquos job should involve or spy stories
with John Le Carre but it has also been associated with business With global competition
intensifying private companies spy on their competitors for general market intelligence such
1 Keith Laidler ndash Surveillance unlimited How wersquove become the most watched people on Earth
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
as product features marketing strategies pricing policies or manufacturing programs as parts
of the so-called industrial espionage
On the other hand there are different forms of espionage categorized by the source of the
information- gathering Firstly there is HUMAN INTELLIGENCE often truncated to
ldquoHUMINTrdquo a doctrinal term employed by intelligence services defined as a category of
intelligence derived from information collected and provided by human sources It refers to
information that individuals divulge whether wittingly or unwittingly This form of espionage
indicates the common form of gathering intelligence ndash the one conducted by spies
The issues related with this form of espionage refer to the status of the spies the reliability of
the sources and moreover the collection of data from non-cooperative persons
On the other hand there is the opposite of it the so-called SIGNITELECTRONIC
SURVEILLANCE comprising communications intelligence and electronic intelligence As
the name itself indicates it SIGNIT relies on technological methods to a larger extent such as
communications passed by radio wire or other electromagnetic means electronics
intelligence consists of electromagnetic radiations such as emissions from a radar system The
rapid development of technology determined the advancement use of this form of espionage
at a large scale
Spying ndash both HUMINT and SIGNIT forms ndash have a variable geography
The following table from JOURNAL OF NATIONAL SECURITY LAW amp POLICY (Vol
5179 ) explains it synthetically
Territorial Extraterritorial Transnational
Human intelligence Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place within
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place on the
territory of another
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources in
which the source
(but not the agent)
is located on the
territory of another
state
Electronic Interception of
communications or
Interception of
communications or
Interception of
communications or
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
surveillance actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
takes place within
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
take place on the
territory of another
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
the communication
(but not the
interception) takes
place on the
territory of another
the state
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Spying under international law
The majority of states whether developed or under developed democratic or non ndash
democratic engage in espionage However despite extensive practice there is no legal
specific international instrument regarding on it Espionage is considered by scholars ill-
defined under international law
Even if states conduct it and there is no specific prohibition on it it does not constitute a part
of customary international law The condition of opinion juris (belief that an action was
carried out by states due to an legal obligation) required for the creation of customary
international law under article 38 (1) of the International Court of Justice Statute it is not met
in the case of espionage States do spy but there are not opining that their actions are in
accordance with international law
The question raised should be why states do not formally propose any instruments to
eliminate espionage since their national security and sovereignty are at stake
This issue could be explained by the fact that most domestic legal systems tend to prohibit
intelligence gathering by foreign affairs while not only protecting but also improving the
statersquos own capacity to conduct covert operations abroad
Taking into consideration the events that moved the international community ndash the declaration
made by the whistleblower Snowden about NSA spying operation on world leaders and on the
other hand the worrying facts revealed by the reports made by Privacy International
concerning the industrial espionage there is an urgent need for specific and precise
regulations regarding espionage to ensure a clear understanding on this matter in line with
human rights standards
The principle of sovereign equality between states
Spying might represent an infringement of the principle of sovereign equality between states
enunciated in Article 2 of the Charter of the United Nations The concept of state
ldquosovereigntyrdquo lies at the core of international law and includes among other things the
statersquos ldquoright to exercise jurisdiction over its territory and over all persons and things therein
subject to the immunities recognized by international lawrdquo A state is therefore generally free
to prescribe the forms of surveillance and investigation it wishes in relation to people places
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
and things on its sovereign territory
However the principle of sovereign is not an absolute concept as it does not entitle states to
act discretionary On the contrary each statersquos sovereignty is constrained by doctrines of
international law and obligations assumed under international treaties For instance states
must abide by international human rights obligations in their conduct within their territories
Both HUMINT and SIGNIT may trigger the application of international human rights norms
Taking into consideration that human intelligence implies interrogations it is essential that
this activities be conducted lawfully Concerning electronic surveillance there are issues of
privacy rights and freedom of expression as it involves surreptitious surveillance of
communication or conduct
The uncooperative interrogations become a threatening and prominently issues after the 911
in the context of debates about counterterrorism all over the world The international law
guards against extreme forms of interrogation Both the International Covenant on Civil and
Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (ldquoTorture Conventionrdquo) include a prohibition on both torture and
cruel inhuman and degrading treatment and punishment This international treaties impose
States Member to fulfill its obligation ldquounder the territory of its jurisdictionrdquo and do not
permit any derogation from the freedom of torture and CID treatment ldquoNo exceptional
circumstances whatsoever whether a state of war or a threat of war internal political
instability or any other public emergency may be invoked as a justification of torturehellip An
order from a superior officer or a public authority may not be invoked as a justification of
torturerdquo
Covert electronic surveillance indisputably impairs privacy Privacy rights are enshrined in
international human rights law The most notable international instruments regulating this
right is the International Covenant on Civil and Political Rights (ICCPR) Article 17 of the
ICCPR states that ldquoNo one shall be subjected to arbitrary or unlawful interference with his
privacy family home or correspondence nor to unlawful attacks on his honor and reputation
Everyone has the right to the protection of the law against such interference or attacksrdquo The
provisions of the ICCPR do not offer a comprehensive definition of the concept of privacy In
order to give some clarifications the UN Human Rights Committee reiterated that Article 17
protects against ldquounlawfulrdquo and ldquoarbitraryrdquo intrusion with unlawful meaning that ldquono
interference can take place except in cases envisaged by the lawrdquo and that the law must itself
ldquocomply with the provisions aims and objectives of the Covenantrdquo
Therefore even if the international law does not specifically address the issue of espionage
its norms influence the conduct of such activities
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
To conclude on this point 1) human intelligence cannot be extracted through abusive
interrogation and 2) electronic surveillance of communications or surveillance that amounts
to intrusions into the ldquohomerdquo (including the place of work) must be authorized by law and by
the appropriate official on a case-by-case basis and be reasonable in the circumstances
Moreover regarding the territorial espionage in most of the states the citizens enjoy a
constitutional right to privacy which is binding
In comparison with the territorial spying its extraterritorial form ndash conducted on the territory
of another state ndash it is a more complex issue which determines the analysis of supplementary
international law provisions specially related to sovereignty
The principle of non-interference in sovereign affairs concomitant to principle of sovereignty
is recognized in the UN Charter itself which provides in Article 2(4) that ldquo[a]ll 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 Nationsrdquo Moreover the General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations declares that ldquo[n]o State or group of States
has the right to intervene directly or indirectly for any reason whatever in the internal or
external affairs of any other Staterdquo
Does transnational espionage breach the non-interference principle
Most commonly transnational espionage has been and still is conducted by States invoking
national security issues The main justification concerns the right of self-defense However in
the absence of a legal instrument regulating the specific circumstances and condition in which
spying is permitted to be conducted in self-defense the doctrinal view does not legitimate the
practice of states
On the other hand espionage conducted as preparation for an armed attack may be considered
a ldquothreat or use of forcerdquo precluded by the UN Charter and customary international law It is
therefore a violation of international law unless the use of force at issue is itself authorized by
the Security Council under chapter VII of the UN Charter or is exercised in self- defense
The doctrine is not consistent regarding this matter Intelligence will probably continue to
exist at the edge of international legitimacy However taking into consideration its
importance in international relations the blurred limits should seize to exist
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Dear delegates
As the chairpersons of the Social Cultural and Humanitarian Committee (SOCHUM) of the
United Nations General Assembly we would like to warmly welcome you to the BISMUN
2014 Conference
We are very excited for this yearrsquos edition therefore we have chosen controversial topics
related to the current international context which will lead to interesting and fruitful debates
We truly encourage you all to participate actively in the committee sessions and come up with
effective policy solutions but apart the academic enrichment we invite you all to create bonds
and friendships which will not be lightly severed in the years to come
During the upcoming week in March you will discuss over the two topics proposed and in
this regard we provide you with comprehensive study guides which will represent the starting
point in your research We strongly recommend you to familiarize with the policy of your
assigned country and develop a position with regard to the topics at hand
Indeed we engage to do our best to guide you towards identifying possible solutions and
writing best resolutions but ultimately itrsquos your benefit to act as real delegates make this
yearrsquos edition everything it should be
We hope we will all have an unforgettable experience and we are looking forward meeting
you all in Bucharest
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Introduction to SOCHUM
The United Nations General Assembly is made up of 30 committees 6 of which are the main
committees The third committee of the UN General Assembly is known as the Social
Humanitarian and Cultural Affairs Committee (SOCHUM) SOCHUM deals with issues
regarding humanitarian affairs and social development By using Special Rapporteurs experts
and the papers of other UN working groups they gather information to keep an eye on the
draft resolutions considered
Under Article 4 of the UN Charter SOCHUM considers ldquoany questions relating to the
maintenance of international peace and security brought before it by any Member of the
United Nations or the Security Councilrdquo SOCHUM is a unique committee in the General
Assembly as it has the jurisdiction to deal with various issues that are sometimes overlapping
with the works of other committees This allows for its resolutions to be extensive and
comprehensive Under the UN Charter all member states and observers of the United Nations
are automatically part of the Third Committee of the General Assembly and have an equal
vote Documents require a simple majority to be passed
SOCHUM as mentioned above deals with various and often overlapping issues This special
authority allows them to examine issues from the rights of indigenous populations children
refugees and other minority groups while tackling the issues of poverty education food and
water shortages as well as representation in the government Although it is unable to impose
sanctions authorize armed intervention or pass binding resolutions the resolutions are
significant and they are able to recommend the Security Council and the Secretariat to
manage specific problems in ways suggested by member states and approved by the
committee As one of the six main committees of the UN General Assembly SOCHUM has
certainly influenced the working of the UN
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Espionage ndash infringement of the right to privacy or legitimate
state practice
ldquoIt is hard to believe that a man is telling the truth when you know that you would lie if you
were in his placerdquo
- H L Mencken
Espionage is not a state practice only of the modern world Its importance in the military
affairs has been recognized since the beginning of the recorded history ldquospying and
surveillance are at least as old as civilization itself1 It is considered one of the oldest most
influential political and military arts From biblical times to present days leaders have
employed espionage on and off the battlefield in the quest of victory This idea was also
reflected by anti-Nazi activist and spy in the World war II Singer Kurt in his book ldquoThree
Thousand years of espionagerdquo ldquothere has never been a war without spies and there never has
been a peace in which spies have not engaged in preparations for a future warrdquo
Espionage can be defined as a form of intelligence gathering conducted by individuals states
or companies and implies the collection of confidential or secret information by varied
methods without the consent of the holder of the information in order to achieve self-
interested goals The distinctive element in comparison with the intelligence gathering
consists of its inherently clandestine character as the last one is considered to be conducted
unlawfully in most of the cases and prohibited by law
Forms of espionage
Although in colloquial terms ldquospyingrdquo is associated with government activities monitoring
on potential or actual enemies invoking national security issues there is also another form of
espionage Indeed espionage is a word that brings in mind well-known James Bond movies
which have shaped a common picture of what an agentrsquos job should involve or spy stories
with John Le Carre but it has also been associated with business With global competition
intensifying private companies spy on their competitors for general market intelligence such
1 Keith Laidler ndash Surveillance unlimited How wersquove become the most watched people on Earth
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
as product features marketing strategies pricing policies or manufacturing programs as parts
of the so-called industrial espionage
On the other hand there are different forms of espionage categorized by the source of the
information- gathering Firstly there is HUMAN INTELLIGENCE often truncated to
ldquoHUMINTrdquo a doctrinal term employed by intelligence services defined as a category of
intelligence derived from information collected and provided by human sources It refers to
information that individuals divulge whether wittingly or unwittingly This form of espionage
indicates the common form of gathering intelligence ndash the one conducted by spies
The issues related with this form of espionage refer to the status of the spies the reliability of
the sources and moreover the collection of data from non-cooperative persons
On the other hand there is the opposite of it the so-called SIGNITELECTRONIC
SURVEILLANCE comprising communications intelligence and electronic intelligence As
the name itself indicates it SIGNIT relies on technological methods to a larger extent such as
communications passed by radio wire or other electromagnetic means electronics
intelligence consists of electromagnetic radiations such as emissions from a radar system The
rapid development of technology determined the advancement use of this form of espionage
at a large scale
Spying ndash both HUMINT and SIGNIT forms ndash have a variable geography
The following table from JOURNAL OF NATIONAL SECURITY LAW amp POLICY (Vol
5179 ) explains it synthetically
Territorial Extraterritorial Transnational
Human intelligence Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place within
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place on the
territory of another
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources in
which the source
(but not the agent)
is located on the
territory of another
state
Electronic Interception of
communications or
Interception of
communications or
Interception of
communications or
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
surveillance actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
takes place within
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
take place on the
territory of another
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
the communication
(but not the
interception) takes
place on the
territory of another
the state
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Spying under international law
The majority of states whether developed or under developed democratic or non ndash
democratic engage in espionage However despite extensive practice there is no legal
specific international instrument regarding on it Espionage is considered by scholars ill-
defined under international law
Even if states conduct it and there is no specific prohibition on it it does not constitute a part
of customary international law The condition of opinion juris (belief that an action was
carried out by states due to an legal obligation) required for the creation of customary
international law under article 38 (1) of the International Court of Justice Statute it is not met
in the case of espionage States do spy but there are not opining that their actions are in
accordance with international law
The question raised should be why states do not formally propose any instruments to
eliminate espionage since their national security and sovereignty are at stake
This issue could be explained by the fact that most domestic legal systems tend to prohibit
intelligence gathering by foreign affairs while not only protecting but also improving the
statersquos own capacity to conduct covert operations abroad
Taking into consideration the events that moved the international community ndash the declaration
made by the whistleblower Snowden about NSA spying operation on world leaders and on the
other hand the worrying facts revealed by the reports made by Privacy International
concerning the industrial espionage there is an urgent need for specific and precise
regulations regarding espionage to ensure a clear understanding on this matter in line with
human rights standards
The principle of sovereign equality between states
Spying might represent an infringement of the principle of sovereign equality between states
enunciated in Article 2 of the Charter of the United Nations The concept of state
ldquosovereigntyrdquo lies at the core of international law and includes among other things the
statersquos ldquoright to exercise jurisdiction over its territory and over all persons and things therein
subject to the immunities recognized by international lawrdquo A state is therefore generally free
to prescribe the forms of surveillance and investigation it wishes in relation to people places
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
and things on its sovereign territory
However the principle of sovereign is not an absolute concept as it does not entitle states to
act discretionary On the contrary each statersquos sovereignty is constrained by doctrines of
international law and obligations assumed under international treaties For instance states
must abide by international human rights obligations in their conduct within their territories
Both HUMINT and SIGNIT may trigger the application of international human rights norms
Taking into consideration that human intelligence implies interrogations it is essential that
this activities be conducted lawfully Concerning electronic surveillance there are issues of
privacy rights and freedom of expression as it involves surreptitious surveillance of
communication or conduct
The uncooperative interrogations become a threatening and prominently issues after the 911
in the context of debates about counterterrorism all over the world The international law
guards against extreme forms of interrogation Both the International Covenant on Civil and
Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (ldquoTorture Conventionrdquo) include a prohibition on both torture and
cruel inhuman and degrading treatment and punishment This international treaties impose
States Member to fulfill its obligation ldquounder the territory of its jurisdictionrdquo and do not
permit any derogation from the freedom of torture and CID treatment ldquoNo exceptional
circumstances whatsoever whether a state of war or a threat of war internal political
instability or any other public emergency may be invoked as a justification of torturehellip An
order from a superior officer or a public authority may not be invoked as a justification of
torturerdquo
Covert electronic surveillance indisputably impairs privacy Privacy rights are enshrined in
international human rights law The most notable international instruments regulating this
right is the International Covenant on Civil and Political Rights (ICCPR) Article 17 of the
ICCPR states that ldquoNo one shall be subjected to arbitrary or unlawful interference with his
privacy family home or correspondence nor to unlawful attacks on his honor and reputation
Everyone has the right to the protection of the law against such interference or attacksrdquo The
provisions of the ICCPR do not offer a comprehensive definition of the concept of privacy In
order to give some clarifications the UN Human Rights Committee reiterated that Article 17
protects against ldquounlawfulrdquo and ldquoarbitraryrdquo intrusion with unlawful meaning that ldquono
interference can take place except in cases envisaged by the lawrdquo and that the law must itself
ldquocomply with the provisions aims and objectives of the Covenantrdquo
Therefore even if the international law does not specifically address the issue of espionage
its norms influence the conduct of such activities
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
To conclude on this point 1) human intelligence cannot be extracted through abusive
interrogation and 2) electronic surveillance of communications or surveillance that amounts
to intrusions into the ldquohomerdquo (including the place of work) must be authorized by law and by
the appropriate official on a case-by-case basis and be reasonable in the circumstances
Moreover regarding the territorial espionage in most of the states the citizens enjoy a
constitutional right to privacy which is binding
In comparison with the territorial spying its extraterritorial form ndash conducted on the territory
of another state ndash it is a more complex issue which determines the analysis of supplementary
international law provisions specially related to sovereignty
The principle of non-interference in sovereign affairs concomitant to principle of sovereignty
is recognized in the UN Charter itself which provides in Article 2(4) that ldquo[a]ll 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 Nationsrdquo Moreover the General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations declares that ldquo[n]o State or group of States
has the right to intervene directly or indirectly for any reason whatever in the internal or
external affairs of any other Staterdquo
Does transnational espionage breach the non-interference principle
Most commonly transnational espionage has been and still is conducted by States invoking
national security issues The main justification concerns the right of self-defense However in
the absence of a legal instrument regulating the specific circumstances and condition in which
spying is permitted to be conducted in self-defense the doctrinal view does not legitimate the
practice of states
On the other hand espionage conducted as preparation for an armed attack may be considered
a ldquothreat or use of forcerdquo precluded by the UN Charter and customary international law It is
therefore a violation of international law unless the use of force at issue is itself authorized by
the Security Council under chapter VII of the UN Charter or is exercised in self- defense
The doctrine is not consistent regarding this matter Intelligence will probably continue to
exist at the edge of international legitimacy However taking into consideration its
importance in international relations the blurred limits should seize to exist
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Introduction to SOCHUM
The United Nations General Assembly is made up of 30 committees 6 of which are the main
committees The third committee of the UN General Assembly is known as the Social
Humanitarian and Cultural Affairs Committee (SOCHUM) SOCHUM deals with issues
regarding humanitarian affairs and social development By using Special Rapporteurs experts
and the papers of other UN working groups they gather information to keep an eye on the
draft resolutions considered
Under Article 4 of the UN Charter SOCHUM considers ldquoany questions relating to the
maintenance of international peace and security brought before it by any Member of the
United Nations or the Security Councilrdquo SOCHUM is a unique committee in the General
Assembly as it has the jurisdiction to deal with various issues that are sometimes overlapping
with the works of other committees This allows for its resolutions to be extensive and
comprehensive Under the UN Charter all member states and observers of the United Nations
are automatically part of the Third Committee of the General Assembly and have an equal
vote Documents require a simple majority to be passed
SOCHUM as mentioned above deals with various and often overlapping issues This special
authority allows them to examine issues from the rights of indigenous populations children
refugees and other minority groups while tackling the issues of poverty education food and
water shortages as well as representation in the government Although it is unable to impose
sanctions authorize armed intervention or pass binding resolutions the resolutions are
significant and they are able to recommend the Security Council and the Secretariat to
manage specific problems in ways suggested by member states and approved by the
committee As one of the six main committees of the UN General Assembly SOCHUM has
certainly influenced the working of the UN
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Espionage ndash infringement of the right to privacy or legitimate
state practice
ldquoIt is hard to believe that a man is telling the truth when you know that you would lie if you
were in his placerdquo
- H L Mencken
Espionage is not a state practice only of the modern world Its importance in the military
affairs has been recognized since the beginning of the recorded history ldquospying and
surveillance are at least as old as civilization itself1 It is considered one of the oldest most
influential political and military arts From biblical times to present days leaders have
employed espionage on and off the battlefield in the quest of victory This idea was also
reflected by anti-Nazi activist and spy in the World war II Singer Kurt in his book ldquoThree
Thousand years of espionagerdquo ldquothere has never been a war without spies and there never has
been a peace in which spies have not engaged in preparations for a future warrdquo
Espionage can be defined as a form of intelligence gathering conducted by individuals states
or companies and implies the collection of confidential or secret information by varied
methods without the consent of the holder of the information in order to achieve self-
interested goals The distinctive element in comparison with the intelligence gathering
consists of its inherently clandestine character as the last one is considered to be conducted
unlawfully in most of the cases and prohibited by law
Forms of espionage
Although in colloquial terms ldquospyingrdquo is associated with government activities monitoring
on potential or actual enemies invoking national security issues there is also another form of
espionage Indeed espionage is a word that brings in mind well-known James Bond movies
which have shaped a common picture of what an agentrsquos job should involve or spy stories
with John Le Carre but it has also been associated with business With global competition
intensifying private companies spy on their competitors for general market intelligence such
1 Keith Laidler ndash Surveillance unlimited How wersquove become the most watched people on Earth
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
as product features marketing strategies pricing policies or manufacturing programs as parts
of the so-called industrial espionage
On the other hand there are different forms of espionage categorized by the source of the
information- gathering Firstly there is HUMAN INTELLIGENCE often truncated to
ldquoHUMINTrdquo a doctrinal term employed by intelligence services defined as a category of
intelligence derived from information collected and provided by human sources It refers to
information that individuals divulge whether wittingly or unwittingly This form of espionage
indicates the common form of gathering intelligence ndash the one conducted by spies
The issues related with this form of espionage refer to the status of the spies the reliability of
the sources and moreover the collection of data from non-cooperative persons
On the other hand there is the opposite of it the so-called SIGNITELECTRONIC
SURVEILLANCE comprising communications intelligence and electronic intelligence As
the name itself indicates it SIGNIT relies on technological methods to a larger extent such as
communications passed by radio wire or other electromagnetic means electronics
intelligence consists of electromagnetic radiations such as emissions from a radar system The
rapid development of technology determined the advancement use of this form of espionage
at a large scale
Spying ndash both HUMINT and SIGNIT forms ndash have a variable geography
The following table from JOURNAL OF NATIONAL SECURITY LAW amp POLICY (Vol
5179 ) explains it synthetically
Territorial Extraterritorial Transnational
Human intelligence Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place within
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place on the
territory of another
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources in
which the source
(but not the agent)
is located on the
territory of another
state
Electronic Interception of
communications or
Interception of
communications or
Interception of
communications or
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
surveillance actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
takes place within
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
take place on the
territory of another
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
the communication
(but not the
interception) takes
place on the
territory of another
the state
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Spying under international law
The majority of states whether developed or under developed democratic or non ndash
democratic engage in espionage However despite extensive practice there is no legal
specific international instrument regarding on it Espionage is considered by scholars ill-
defined under international law
Even if states conduct it and there is no specific prohibition on it it does not constitute a part
of customary international law The condition of opinion juris (belief that an action was
carried out by states due to an legal obligation) required for the creation of customary
international law under article 38 (1) of the International Court of Justice Statute it is not met
in the case of espionage States do spy but there are not opining that their actions are in
accordance with international law
The question raised should be why states do not formally propose any instruments to
eliminate espionage since their national security and sovereignty are at stake
This issue could be explained by the fact that most domestic legal systems tend to prohibit
intelligence gathering by foreign affairs while not only protecting but also improving the
statersquos own capacity to conduct covert operations abroad
Taking into consideration the events that moved the international community ndash the declaration
made by the whistleblower Snowden about NSA spying operation on world leaders and on the
other hand the worrying facts revealed by the reports made by Privacy International
concerning the industrial espionage there is an urgent need for specific and precise
regulations regarding espionage to ensure a clear understanding on this matter in line with
human rights standards
The principle of sovereign equality between states
Spying might represent an infringement of the principle of sovereign equality between states
enunciated in Article 2 of the Charter of the United Nations The concept of state
ldquosovereigntyrdquo lies at the core of international law and includes among other things the
statersquos ldquoright to exercise jurisdiction over its territory and over all persons and things therein
subject to the immunities recognized by international lawrdquo A state is therefore generally free
to prescribe the forms of surveillance and investigation it wishes in relation to people places
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
and things on its sovereign territory
However the principle of sovereign is not an absolute concept as it does not entitle states to
act discretionary On the contrary each statersquos sovereignty is constrained by doctrines of
international law and obligations assumed under international treaties For instance states
must abide by international human rights obligations in their conduct within their territories
Both HUMINT and SIGNIT may trigger the application of international human rights norms
Taking into consideration that human intelligence implies interrogations it is essential that
this activities be conducted lawfully Concerning electronic surveillance there are issues of
privacy rights and freedom of expression as it involves surreptitious surveillance of
communication or conduct
The uncooperative interrogations become a threatening and prominently issues after the 911
in the context of debates about counterterrorism all over the world The international law
guards against extreme forms of interrogation Both the International Covenant on Civil and
Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (ldquoTorture Conventionrdquo) include a prohibition on both torture and
cruel inhuman and degrading treatment and punishment This international treaties impose
States Member to fulfill its obligation ldquounder the territory of its jurisdictionrdquo and do not
permit any derogation from the freedom of torture and CID treatment ldquoNo exceptional
circumstances whatsoever whether a state of war or a threat of war internal political
instability or any other public emergency may be invoked as a justification of torturehellip An
order from a superior officer or a public authority may not be invoked as a justification of
torturerdquo
Covert electronic surveillance indisputably impairs privacy Privacy rights are enshrined in
international human rights law The most notable international instruments regulating this
right is the International Covenant on Civil and Political Rights (ICCPR) Article 17 of the
ICCPR states that ldquoNo one shall be subjected to arbitrary or unlawful interference with his
privacy family home or correspondence nor to unlawful attacks on his honor and reputation
Everyone has the right to the protection of the law against such interference or attacksrdquo The
provisions of the ICCPR do not offer a comprehensive definition of the concept of privacy In
order to give some clarifications the UN Human Rights Committee reiterated that Article 17
protects against ldquounlawfulrdquo and ldquoarbitraryrdquo intrusion with unlawful meaning that ldquono
interference can take place except in cases envisaged by the lawrdquo and that the law must itself
ldquocomply with the provisions aims and objectives of the Covenantrdquo
Therefore even if the international law does not specifically address the issue of espionage
its norms influence the conduct of such activities
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
To conclude on this point 1) human intelligence cannot be extracted through abusive
interrogation and 2) electronic surveillance of communications or surveillance that amounts
to intrusions into the ldquohomerdquo (including the place of work) must be authorized by law and by
the appropriate official on a case-by-case basis and be reasonable in the circumstances
Moreover regarding the territorial espionage in most of the states the citizens enjoy a
constitutional right to privacy which is binding
In comparison with the territorial spying its extraterritorial form ndash conducted on the territory
of another state ndash it is a more complex issue which determines the analysis of supplementary
international law provisions specially related to sovereignty
The principle of non-interference in sovereign affairs concomitant to principle of sovereignty
is recognized in the UN Charter itself which provides in Article 2(4) that ldquo[a]ll 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 Nationsrdquo Moreover the General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations declares that ldquo[n]o State or group of States
has the right to intervene directly or indirectly for any reason whatever in the internal or
external affairs of any other Staterdquo
Does transnational espionage breach the non-interference principle
Most commonly transnational espionage has been and still is conducted by States invoking
national security issues The main justification concerns the right of self-defense However in
the absence of a legal instrument regulating the specific circumstances and condition in which
spying is permitted to be conducted in self-defense the doctrinal view does not legitimate the
practice of states
On the other hand espionage conducted as preparation for an armed attack may be considered
a ldquothreat or use of forcerdquo precluded by the UN Charter and customary international law It is
therefore a violation of international law unless the use of force at issue is itself authorized by
the Security Council under chapter VII of the UN Charter or is exercised in self- defense
The doctrine is not consistent regarding this matter Intelligence will probably continue to
exist at the edge of international legitimacy However taking into consideration its
importance in international relations the blurred limits should seize to exist
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Espionage ndash infringement of the right to privacy or legitimate
state practice
ldquoIt is hard to believe that a man is telling the truth when you know that you would lie if you
were in his placerdquo
- H L Mencken
Espionage is not a state practice only of the modern world Its importance in the military
affairs has been recognized since the beginning of the recorded history ldquospying and
surveillance are at least as old as civilization itself1 It is considered one of the oldest most
influential political and military arts From biblical times to present days leaders have
employed espionage on and off the battlefield in the quest of victory This idea was also
reflected by anti-Nazi activist and spy in the World war II Singer Kurt in his book ldquoThree
Thousand years of espionagerdquo ldquothere has never been a war without spies and there never has
been a peace in which spies have not engaged in preparations for a future warrdquo
Espionage can be defined as a form of intelligence gathering conducted by individuals states
or companies and implies the collection of confidential or secret information by varied
methods without the consent of the holder of the information in order to achieve self-
interested goals The distinctive element in comparison with the intelligence gathering
consists of its inherently clandestine character as the last one is considered to be conducted
unlawfully in most of the cases and prohibited by law
Forms of espionage
Although in colloquial terms ldquospyingrdquo is associated with government activities monitoring
on potential or actual enemies invoking national security issues there is also another form of
espionage Indeed espionage is a word that brings in mind well-known James Bond movies
which have shaped a common picture of what an agentrsquos job should involve or spy stories
with John Le Carre but it has also been associated with business With global competition
intensifying private companies spy on their competitors for general market intelligence such
1 Keith Laidler ndash Surveillance unlimited How wersquove become the most watched people on Earth
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
as product features marketing strategies pricing policies or manufacturing programs as parts
of the so-called industrial espionage
On the other hand there are different forms of espionage categorized by the source of the
information- gathering Firstly there is HUMAN INTELLIGENCE often truncated to
ldquoHUMINTrdquo a doctrinal term employed by intelligence services defined as a category of
intelligence derived from information collected and provided by human sources It refers to
information that individuals divulge whether wittingly or unwittingly This form of espionage
indicates the common form of gathering intelligence ndash the one conducted by spies
The issues related with this form of espionage refer to the status of the spies the reliability of
the sources and moreover the collection of data from non-cooperative persons
On the other hand there is the opposite of it the so-called SIGNITELECTRONIC
SURVEILLANCE comprising communications intelligence and electronic intelligence As
the name itself indicates it SIGNIT relies on technological methods to a larger extent such as
communications passed by radio wire or other electromagnetic means electronics
intelligence consists of electromagnetic radiations such as emissions from a radar system The
rapid development of technology determined the advancement use of this form of espionage
at a large scale
Spying ndash both HUMINT and SIGNIT forms ndash have a variable geography
The following table from JOURNAL OF NATIONAL SECURITY LAW amp POLICY (Vol
5179 ) explains it synthetically
Territorial Extraterritorial Transnational
Human intelligence Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place within
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place on the
territory of another
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources in
which the source
(but not the agent)
is located on the
territory of another
state
Electronic Interception of
communications or
Interception of
communications or
Interception of
communications or
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
surveillance actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
takes place within
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
take place on the
territory of another
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
the communication
(but not the
interception) takes
place on the
territory of another
the state
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Spying under international law
The majority of states whether developed or under developed democratic or non ndash
democratic engage in espionage However despite extensive practice there is no legal
specific international instrument regarding on it Espionage is considered by scholars ill-
defined under international law
Even if states conduct it and there is no specific prohibition on it it does not constitute a part
of customary international law The condition of opinion juris (belief that an action was
carried out by states due to an legal obligation) required for the creation of customary
international law under article 38 (1) of the International Court of Justice Statute it is not met
in the case of espionage States do spy but there are not opining that their actions are in
accordance with international law
The question raised should be why states do not formally propose any instruments to
eliminate espionage since their national security and sovereignty are at stake
This issue could be explained by the fact that most domestic legal systems tend to prohibit
intelligence gathering by foreign affairs while not only protecting but also improving the
statersquos own capacity to conduct covert operations abroad
Taking into consideration the events that moved the international community ndash the declaration
made by the whistleblower Snowden about NSA spying operation on world leaders and on the
other hand the worrying facts revealed by the reports made by Privacy International
concerning the industrial espionage there is an urgent need for specific and precise
regulations regarding espionage to ensure a clear understanding on this matter in line with
human rights standards
The principle of sovereign equality between states
Spying might represent an infringement of the principle of sovereign equality between states
enunciated in Article 2 of the Charter of the United Nations The concept of state
ldquosovereigntyrdquo lies at the core of international law and includes among other things the
statersquos ldquoright to exercise jurisdiction over its territory and over all persons and things therein
subject to the immunities recognized by international lawrdquo A state is therefore generally free
to prescribe the forms of surveillance and investigation it wishes in relation to people places
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
and things on its sovereign territory
However the principle of sovereign is not an absolute concept as it does not entitle states to
act discretionary On the contrary each statersquos sovereignty is constrained by doctrines of
international law and obligations assumed under international treaties For instance states
must abide by international human rights obligations in their conduct within their territories
Both HUMINT and SIGNIT may trigger the application of international human rights norms
Taking into consideration that human intelligence implies interrogations it is essential that
this activities be conducted lawfully Concerning electronic surveillance there are issues of
privacy rights and freedom of expression as it involves surreptitious surveillance of
communication or conduct
The uncooperative interrogations become a threatening and prominently issues after the 911
in the context of debates about counterterrorism all over the world The international law
guards against extreme forms of interrogation Both the International Covenant on Civil and
Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (ldquoTorture Conventionrdquo) include a prohibition on both torture and
cruel inhuman and degrading treatment and punishment This international treaties impose
States Member to fulfill its obligation ldquounder the territory of its jurisdictionrdquo and do not
permit any derogation from the freedom of torture and CID treatment ldquoNo exceptional
circumstances whatsoever whether a state of war or a threat of war internal political
instability or any other public emergency may be invoked as a justification of torturehellip An
order from a superior officer or a public authority may not be invoked as a justification of
torturerdquo
Covert electronic surveillance indisputably impairs privacy Privacy rights are enshrined in
international human rights law The most notable international instruments regulating this
right is the International Covenant on Civil and Political Rights (ICCPR) Article 17 of the
ICCPR states that ldquoNo one shall be subjected to arbitrary or unlawful interference with his
privacy family home or correspondence nor to unlawful attacks on his honor and reputation
Everyone has the right to the protection of the law against such interference or attacksrdquo The
provisions of the ICCPR do not offer a comprehensive definition of the concept of privacy In
order to give some clarifications the UN Human Rights Committee reiterated that Article 17
protects against ldquounlawfulrdquo and ldquoarbitraryrdquo intrusion with unlawful meaning that ldquono
interference can take place except in cases envisaged by the lawrdquo and that the law must itself
ldquocomply with the provisions aims and objectives of the Covenantrdquo
Therefore even if the international law does not specifically address the issue of espionage
its norms influence the conduct of such activities
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
To conclude on this point 1) human intelligence cannot be extracted through abusive
interrogation and 2) electronic surveillance of communications or surveillance that amounts
to intrusions into the ldquohomerdquo (including the place of work) must be authorized by law and by
the appropriate official on a case-by-case basis and be reasonable in the circumstances
Moreover regarding the territorial espionage in most of the states the citizens enjoy a
constitutional right to privacy which is binding
In comparison with the territorial spying its extraterritorial form ndash conducted on the territory
of another state ndash it is a more complex issue which determines the analysis of supplementary
international law provisions specially related to sovereignty
The principle of non-interference in sovereign affairs concomitant to principle of sovereignty
is recognized in the UN Charter itself which provides in Article 2(4) that ldquo[a]ll 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 Nationsrdquo Moreover the General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations declares that ldquo[n]o State or group of States
has the right to intervene directly or indirectly for any reason whatever in the internal or
external affairs of any other Staterdquo
Does transnational espionage breach the non-interference principle
Most commonly transnational espionage has been and still is conducted by States invoking
national security issues The main justification concerns the right of self-defense However in
the absence of a legal instrument regulating the specific circumstances and condition in which
spying is permitted to be conducted in self-defense the doctrinal view does not legitimate the
practice of states
On the other hand espionage conducted as preparation for an armed attack may be considered
a ldquothreat or use of forcerdquo precluded by the UN Charter and customary international law It is
therefore a violation of international law unless the use of force at issue is itself authorized by
the Security Council under chapter VII of the UN Charter or is exercised in self- defense
The doctrine is not consistent regarding this matter Intelligence will probably continue to
exist at the edge of international legitimacy However taking into consideration its
importance in international relations the blurred limits should seize to exist
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
as product features marketing strategies pricing policies or manufacturing programs as parts
of the so-called industrial espionage
On the other hand there are different forms of espionage categorized by the source of the
information- gathering Firstly there is HUMAN INTELLIGENCE often truncated to
ldquoHUMINTrdquo a doctrinal term employed by intelligence services defined as a category of
intelligence derived from information collected and provided by human sources It refers to
information that individuals divulge whether wittingly or unwittingly This form of espionage
indicates the common form of gathering intelligence ndash the one conducted by spies
The issues related with this form of espionage refer to the status of the spies the reliability of
the sources and moreover the collection of data from non-cooperative persons
On the other hand there is the opposite of it the so-called SIGNITELECTRONIC
SURVEILLANCE comprising communications intelligence and electronic intelligence As
the name itself indicates it SIGNIT relies on technological methods to a larger extent such as
communications passed by radio wire or other electromagnetic means electronics
intelligence consists of electromagnetic radiations such as emissions from a radar system The
rapid development of technology determined the advancement use of this form of espionage
at a large scale
Spying ndash both HUMINT and SIGNIT forms ndash have a variable geography
The following table from JOURNAL OF NATIONAL SECURITY LAW amp POLICY (Vol
5179 ) explains it synthetically
Territorial Extraterritorial Transnational
Human intelligence Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place within
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources that
takes place on the
territory of another
the state
Collection of
information by a
state agent from
people and their
associated
documents and
media sources in
which the source
(but not the agent)
is located on the
territory of another
state
Electronic Interception of
communications or
Interception of
communications or
Interception of
communications or
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
surveillance actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
takes place within
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
take place on the
territory of another
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
the communication
(but not the
interception) takes
place on the
territory of another
the state
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Spying under international law
The majority of states whether developed or under developed democratic or non ndash
democratic engage in espionage However despite extensive practice there is no legal
specific international instrument regarding on it Espionage is considered by scholars ill-
defined under international law
Even if states conduct it and there is no specific prohibition on it it does not constitute a part
of customary international law The condition of opinion juris (belief that an action was
carried out by states due to an legal obligation) required for the creation of customary
international law under article 38 (1) of the International Court of Justice Statute it is not met
in the case of espionage States do spy but there are not opining that their actions are in
accordance with international law
The question raised should be why states do not formally propose any instruments to
eliminate espionage since their national security and sovereignty are at stake
This issue could be explained by the fact that most domestic legal systems tend to prohibit
intelligence gathering by foreign affairs while not only protecting but also improving the
statersquos own capacity to conduct covert operations abroad
Taking into consideration the events that moved the international community ndash the declaration
made by the whistleblower Snowden about NSA spying operation on world leaders and on the
other hand the worrying facts revealed by the reports made by Privacy International
concerning the industrial espionage there is an urgent need for specific and precise
regulations regarding espionage to ensure a clear understanding on this matter in line with
human rights standards
The principle of sovereign equality between states
Spying might represent an infringement of the principle of sovereign equality between states
enunciated in Article 2 of the Charter of the United Nations The concept of state
ldquosovereigntyrdquo lies at the core of international law and includes among other things the
statersquos ldquoright to exercise jurisdiction over its territory and over all persons and things therein
subject to the immunities recognized by international lawrdquo A state is therefore generally free
to prescribe the forms of surveillance and investigation it wishes in relation to people places
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
and things on its sovereign territory
However the principle of sovereign is not an absolute concept as it does not entitle states to
act discretionary On the contrary each statersquos sovereignty is constrained by doctrines of
international law and obligations assumed under international treaties For instance states
must abide by international human rights obligations in their conduct within their territories
Both HUMINT and SIGNIT may trigger the application of international human rights norms
Taking into consideration that human intelligence implies interrogations it is essential that
this activities be conducted lawfully Concerning electronic surveillance there are issues of
privacy rights and freedom of expression as it involves surreptitious surveillance of
communication or conduct
The uncooperative interrogations become a threatening and prominently issues after the 911
in the context of debates about counterterrorism all over the world The international law
guards against extreme forms of interrogation Both the International Covenant on Civil and
Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (ldquoTorture Conventionrdquo) include a prohibition on both torture and
cruel inhuman and degrading treatment and punishment This international treaties impose
States Member to fulfill its obligation ldquounder the territory of its jurisdictionrdquo and do not
permit any derogation from the freedom of torture and CID treatment ldquoNo exceptional
circumstances whatsoever whether a state of war or a threat of war internal political
instability or any other public emergency may be invoked as a justification of torturehellip An
order from a superior officer or a public authority may not be invoked as a justification of
torturerdquo
Covert electronic surveillance indisputably impairs privacy Privacy rights are enshrined in
international human rights law The most notable international instruments regulating this
right is the International Covenant on Civil and Political Rights (ICCPR) Article 17 of the
ICCPR states that ldquoNo one shall be subjected to arbitrary or unlawful interference with his
privacy family home or correspondence nor to unlawful attacks on his honor and reputation
Everyone has the right to the protection of the law against such interference or attacksrdquo The
provisions of the ICCPR do not offer a comprehensive definition of the concept of privacy In
order to give some clarifications the UN Human Rights Committee reiterated that Article 17
protects against ldquounlawfulrdquo and ldquoarbitraryrdquo intrusion with unlawful meaning that ldquono
interference can take place except in cases envisaged by the lawrdquo and that the law must itself
ldquocomply with the provisions aims and objectives of the Covenantrdquo
Therefore even if the international law does not specifically address the issue of espionage
its norms influence the conduct of such activities
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
To conclude on this point 1) human intelligence cannot be extracted through abusive
interrogation and 2) electronic surveillance of communications or surveillance that amounts
to intrusions into the ldquohomerdquo (including the place of work) must be authorized by law and by
the appropriate official on a case-by-case basis and be reasonable in the circumstances
Moreover regarding the territorial espionage in most of the states the citizens enjoy a
constitutional right to privacy which is binding
In comparison with the territorial spying its extraterritorial form ndash conducted on the territory
of another state ndash it is a more complex issue which determines the analysis of supplementary
international law provisions specially related to sovereignty
The principle of non-interference in sovereign affairs concomitant to principle of sovereignty
is recognized in the UN Charter itself which provides in Article 2(4) that ldquo[a]ll 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 Nationsrdquo Moreover the General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations declares that ldquo[n]o State or group of States
has the right to intervene directly or indirectly for any reason whatever in the internal or
external affairs of any other Staterdquo
Does transnational espionage breach the non-interference principle
Most commonly transnational espionage has been and still is conducted by States invoking
national security issues The main justification concerns the right of self-defense However in
the absence of a legal instrument regulating the specific circumstances and condition in which
spying is permitted to be conducted in self-defense the doctrinal view does not legitimate the
practice of states
On the other hand espionage conducted as preparation for an armed attack may be considered
a ldquothreat or use of forcerdquo precluded by the UN Charter and customary international law It is
therefore a violation of international law unless the use of force at issue is itself authorized by
the Security Council under chapter VII of the UN Charter or is exercised in self- defense
The doctrine is not consistent regarding this matter Intelligence will probably continue to
exist at the edge of international legitimacy However taking into consideration its
importance in international relations the blurred limits should seize to exist
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
surveillance actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
takes place within
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
both the
communication and
the interception
take place on the
territory of another
the state
actions passed by
radio wire or other
electromagnetic
photo-electronic
andor photo-
optical means and
of electromagnetic
radiations in which
the communication
(but not the
interception) takes
place on the
territory of another
the state
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Spying under international law
The majority of states whether developed or under developed democratic or non ndash
democratic engage in espionage However despite extensive practice there is no legal
specific international instrument regarding on it Espionage is considered by scholars ill-
defined under international law
Even if states conduct it and there is no specific prohibition on it it does not constitute a part
of customary international law The condition of opinion juris (belief that an action was
carried out by states due to an legal obligation) required for the creation of customary
international law under article 38 (1) of the International Court of Justice Statute it is not met
in the case of espionage States do spy but there are not opining that their actions are in
accordance with international law
The question raised should be why states do not formally propose any instruments to
eliminate espionage since their national security and sovereignty are at stake
This issue could be explained by the fact that most domestic legal systems tend to prohibit
intelligence gathering by foreign affairs while not only protecting but also improving the
statersquos own capacity to conduct covert operations abroad
Taking into consideration the events that moved the international community ndash the declaration
made by the whistleblower Snowden about NSA spying operation on world leaders and on the
other hand the worrying facts revealed by the reports made by Privacy International
concerning the industrial espionage there is an urgent need for specific and precise
regulations regarding espionage to ensure a clear understanding on this matter in line with
human rights standards
The principle of sovereign equality between states
Spying might represent an infringement of the principle of sovereign equality between states
enunciated in Article 2 of the Charter of the United Nations The concept of state
ldquosovereigntyrdquo lies at the core of international law and includes among other things the
statersquos ldquoright to exercise jurisdiction over its territory and over all persons and things therein
subject to the immunities recognized by international lawrdquo A state is therefore generally free
to prescribe the forms of surveillance and investigation it wishes in relation to people places
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
and things on its sovereign territory
However the principle of sovereign is not an absolute concept as it does not entitle states to
act discretionary On the contrary each statersquos sovereignty is constrained by doctrines of
international law and obligations assumed under international treaties For instance states
must abide by international human rights obligations in their conduct within their territories
Both HUMINT and SIGNIT may trigger the application of international human rights norms
Taking into consideration that human intelligence implies interrogations it is essential that
this activities be conducted lawfully Concerning electronic surveillance there are issues of
privacy rights and freedom of expression as it involves surreptitious surveillance of
communication or conduct
The uncooperative interrogations become a threatening and prominently issues after the 911
in the context of debates about counterterrorism all over the world The international law
guards against extreme forms of interrogation Both the International Covenant on Civil and
Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (ldquoTorture Conventionrdquo) include a prohibition on both torture and
cruel inhuman and degrading treatment and punishment This international treaties impose
States Member to fulfill its obligation ldquounder the territory of its jurisdictionrdquo and do not
permit any derogation from the freedom of torture and CID treatment ldquoNo exceptional
circumstances whatsoever whether a state of war or a threat of war internal political
instability or any other public emergency may be invoked as a justification of torturehellip An
order from a superior officer or a public authority may not be invoked as a justification of
torturerdquo
Covert electronic surveillance indisputably impairs privacy Privacy rights are enshrined in
international human rights law The most notable international instruments regulating this
right is the International Covenant on Civil and Political Rights (ICCPR) Article 17 of the
ICCPR states that ldquoNo one shall be subjected to arbitrary or unlawful interference with his
privacy family home or correspondence nor to unlawful attacks on his honor and reputation
Everyone has the right to the protection of the law against such interference or attacksrdquo The
provisions of the ICCPR do not offer a comprehensive definition of the concept of privacy In
order to give some clarifications the UN Human Rights Committee reiterated that Article 17
protects against ldquounlawfulrdquo and ldquoarbitraryrdquo intrusion with unlawful meaning that ldquono
interference can take place except in cases envisaged by the lawrdquo and that the law must itself
ldquocomply with the provisions aims and objectives of the Covenantrdquo
Therefore even if the international law does not specifically address the issue of espionage
its norms influence the conduct of such activities
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
To conclude on this point 1) human intelligence cannot be extracted through abusive
interrogation and 2) electronic surveillance of communications or surveillance that amounts
to intrusions into the ldquohomerdquo (including the place of work) must be authorized by law and by
the appropriate official on a case-by-case basis and be reasonable in the circumstances
Moreover regarding the territorial espionage in most of the states the citizens enjoy a
constitutional right to privacy which is binding
In comparison with the territorial spying its extraterritorial form ndash conducted on the territory
of another state ndash it is a more complex issue which determines the analysis of supplementary
international law provisions specially related to sovereignty
The principle of non-interference in sovereign affairs concomitant to principle of sovereignty
is recognized in the UN Charter itself which provides in Article 2(4) that ldquo[a]ll 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 Nationsrdquo Moreover the General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations declares that ldquo[n]o State or group of States
has the right to intervene directly or indirectly for any reason whatever in the internal or
external affairs of any other Staterdquo
Does transnational espionage breach the non-interference principle
Most commonly transnational espionage has been and still is conducted by States invoking
national security issues The main justification concerns the right of self-defense However in
the absence of a legal instrument regulating the specific circumstances and condition in which
spying is permitted to be conducted in self-defense the doctrinal view does not legitimate the
practice of states
On the other hand espionage conducted as preparation for an armed attack may be considered
a ldquothreat or use of forcerdquo precluded by the UN Charter and customary international law It is
therefore a violation of international law unless the use of force at issue is itself authorized by
the Security Council under chapter VII of the UN Charter or is exercised in self- defense
The doctrine is not consistent regarding this matter Intelligence will probably continue to
exist at the edge of international legitimacy However taking into consideration its
importance in international relations the blurred limits should seize to exist
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Spying under international law
The majority of states whether developed or under developed democratic or non ndash
democratic engage in espionage However despite extensive practice there is no legal
specific international instrument regarding on it Espionage is considered by scholars ill-
defined under international law
Even if states conduct it and there is no specific prohibition on it it does not constitute a part
of customary international law The condition of opinion juris (belief that an action was
carried out by states due to an legal obligation) required for the creation of customary
international law under article 38 (1) of the International Court of Justice Statute it is not met
in the case of espionage States do spy but there are not opining that their actions are in
accordance with international law
The question raised should be why states do not formally propose any instruments to
eliminate espionage since their national security and sovereignty are at stake
This issue could be explained by the fact that most domestic legal systems tend to prohibit
intelligence gathering by foreign affairs while not only protecting but also improving the
statersquos own capacity to conduct covert operations abroad
Taking into consideration the events that moved the international community ndash the declaration
made by the whistleblower Snowden about NSA spying operation on world leaders and on the
other hand the worrying facts revealed by the reports made by Privacy International
concerning the industrial espionage there is an urgent need for specific and precise
regulations regarding espionage to ensure a clear understanding on this matter in line with
human rights standards
The principle of sovereign equality between states
Spying might represent an infringement of the principle of sovereign equality between states
enunciated in Article 2 of the Charter of the United Nations The concept of state
ldquosovereigntyrdquo lies at the core of international law and includes among other things the
statersquos ldquoright to exercise jurisdiction over its territory and over all persons and things therein
subject to the immunities recognized by international lawrdquo A state is therefore generally free
to prescribe the forms of surveillance and investigation it wishes in relation to people places
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
and things on its sovereign territory
However the principle of sovereign is not an absolute concept as it does not entitle states to
act discretionary On the contrary each statersquos sovereignty is constrained by doctrines of
international law and obligations assumed under international treaties For instance states
must abide by international human rights obligations in their conduct within their territories
Both HUMINT and SIGNIT may trigger the application of international human rights norms
Taking into consideration that human intelligence implies interrogations it is essential that
this activities be conducted lawfully Concerning electronic surveillance there are issues of
privacy rights and freedom of expression as it involves surreptitious surveillance of
communication or conduct
The uncooperative interrogations become a threatening and prominently issues after the 911
in the context of debates about counterterrorism all over the world The international law
guards against extreme forms of interrogation Both the International Covenant on Civil and
Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (ldquoTorture Conventionrdquo) include a prohibition on both torture and
cruel inhuman and degrading treatment and punishment This international treaties impose
States Member to fulfill its obligation ldquounder the territory of its jurisdictionrdquo and do not
permit any derogation from the freedom of torture and CID treatment ldquoNo exceptional
circumstances whatsoever whether a state of war or a threat of war internal political
instability or any other public emergency may be invoked as a justification of torturehellip An
order from a superior officer or a public authority may not be invoked as a justification of
torturerdquo
Covert electronic surveillance indisputably impairs privacy Privacy rights are enshrined in
international human rights law The most notable international instruments regulating this
right is the International Covenant on Civil and Political Rights (ICCPR) Article 17 of the
ICCPR states that ldquoNo one shall be subjected to arbitrary or unlawful interference with his
privacy family home or correspondence nor to unlawful attacks on his honor and reputation
Everyone has the right to the protection of the law against such interference or attacksrdquo The
provisions of the ICCPR do not offer a comprehensive definition of the concept of privacy In
order to give some clarifications the UN Human Rights Committee reiterated that Article 17
protects against ldquounlawfulrdquo and ldquoarbitraryrdquo intrusion with unlawful meaning that ldquono
interference can take place except in cases envisaged by the lawrdquo and that the law must itself
ldquocomply with the provisions aims and objectives of the Covenantrdquo
Therefore even if the international law does not specifically address the issue of espionage
its norms influence the conduct of such activities
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
To conclude on this point 1) human intelligence cannot be extracted through abusive
interrogation and 2) electronic surveillance of communications or surveillance that amounts
to intrusions into the ldquohomerdquo (including the place of work) must be authorized by law and by
the appropriate official on a case-by-case basis and be reasonable in the circumstances
Moreover regarding the territorial espionage in most of the states the citizens enjoy a
constitutional right to privacy which is binding
In comparison with the territorial spying its extraterritorial form ndash conducted on the territory
of another state ndash it is a more complex issue which determines the analysis of supplementary
international law provisions specially related to sovereignty
The principle of non-interference in sovereign affairs concomitant to principle of sovereignty
is recognized in the UN Charter itself which provides in Article 2(4) that ldquo[a]ll 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 Nationsrdquo Moreover the General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations declares that ldquo[n]o State or group of States
has the right to intervene directly or indirectly for any reason whatever in the internal or
external affairs of any other Staterdquo
Does transnational espionage breach the non-interference principle
Most commonly transnational espionage has been and still is conducted by States invoking
national security issues The main justification concerns the right of self-defense However in
the absence of a legal instrument regulating the specific circumstances and condition in which
spying is permitted to be conducted in self-defense the doctrinal view does not legitimate the
practice of states
On the other hand espionage conducted as preparation for an armed attack may be considered
a ldquothreat or use of forcerdquo precluded by the UN Charter and customary international law It is
therefore a violation of international law unless the use of force at issue is itself authorized by
the Security Council under chapter VII of the UN Charter or is exercised in self- defense
The doctrine is not consistent regarding this matter Intelligence will probably continue to
exist at the edge of international legitimacy However taking into consideration its
importance in international relations the blurred limits should seize to exist
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
and things on its sovereign territory
However the principle of sovereign is not an absolute concept as it does not entitle states to
act discretionary On the contrary each statersquos sovereignty is constrained by doctrines of
international law and obligations assumed under international treaties For instance states
must abide by international human rights obligations in their conduct within their territories
Both HUMINT and SIGNIT may trigger the application of international human rights norms
Taking into consideration that human intelligence implies interrogations it is essential that
this activities be conducted lawfully Concerning electronic surveillance there are issues of
privacy rights and freedom of expression as it involves surreptitious surveillance of
communication or conduct
The uncooperative interrogations become a threatening and prominently issues after the 911
in the context of debates about counterterrorism all over the world The international law
guards against extreme forms of interrogation Both the International Covenant on Civil and
Political Rights and the Convention Against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment (ldquoTorture Conventionrdquo) include a prohibition on both torture and
cruel inhuman and degrading treatment and punishment This international treaties impose
States Member to fulfill its obligation ldquounder the territory of its jurisdictionrdquo and do not
permit any derogation from the freedom of torture and CID treatment ldquoNo exceptional
circumstances whatsoever whether a state of war or a threat of war internal political
instability or any other public emergency may be invoked as a justification of torturehellip An
order from a superior officer or a public authority may not be invoked as a justification of
torturerdquo
Covert electronic surveillance indisputably impairs privacy Privacy rights are enshrined in
international human rights law The most notable international instruments regulating this
right is the International Covenant on Civil and Political Rights (ICCPR) Article 17 of the
ICCPR states that ldquoNo one shall be subjected to arbitrary or unlawful interference with his
privacy family home or correspondence nor to unlawful attacks on his honor and reputation
Everyone has the right to the protection of the law against such interference or attacksrdquo The
provisions of the ICCPR do not offer a comprehensive definition of the concept of privacy In
order to give some clarifications the UN Human Rights Committee reiterated that Article 17
protects against ldquounlawfulrdquo and ldquoarbitraryrdquo intrusion with unlawful meaning that ldquono
interference can take place except in cases envisaged by the lawrdquo and that the law must itself
ldquocomply with the provisions aims and objectives of the Covenantrdquo
Therefore even if the international law does not specifically address the issue of espionage
its norms influence the conduct of such activities
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
To conclude on this point 1) human intelligence cannot be extracted through abusive
interrogation and 2) electronic surveillance of communications or surveillance that amounts
to intrusions into the ldquohomerdquo (including the place of work) must be authorized by law and by
the appropriate official on a case-by-case basis and be reasonable in the circumstances
Moreover regarding the territorial espionage in most of the states the citizens enjoy a
constitutional right to privacy which is binding
In comparison with the territorial spying its extraterritorial form ndash conducted on the territory
of another state ndash it is a more complex issue which determines the analysis of supplementary
international law provisions specially related to sovereignty
The principle of non-interference in sovereign affairs concomitant to principle of sovereignty
is recognized in the UN Charter itself which provides in Article 2(4) that ldquo[a]ll 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 Nationsrdquo Moreover the General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations declares that ldquo[n]o State or group of States
has the right to intervene directly or indirectly for any reason whatever in the internal or
external affairs of any other Staterdquo
Does transnational espionage breach the non-interference principle
Most commonly transnational espionage has been and still is conducted by States invoking
national security issues The main justification concerns the right of self-defense However in
the absence of a legal instrument regulating the specific circumstances and condition in which
spying is permitted to be conducted in self-defense the doctrinal view does not legitimate the
practice of states
On the other hand espionage conducted as preparation for an armed attack may be considered
a ldquothreat or use of forcerdquo precluded by the UN Charter and customary international law It is
therefore a violation of international law unless the use of force at issue is itself authorized by
the Security Council under chapter VII of the UN Charter or is exercised in self- defense
The doctrine is not consistent regarding this matter Intelligence will probably continue to
exist at the edge of international legitimacy However taking into consideration its
importance in international relations the blurred limits should seize to exist
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
To conclude on this point 1) human intelligence cannot be extracted through abusive
interrogation and 2) electronic surveillance of communications or surveillance that amounts
to intrusions into the ldquohomerdquo (including the place of work) must be authorized by law and by
the appropriate official on a case-by-case basis and be reasonable in the circumstances
Moreover regarding the territorial espionage in most of the states the citizens enjoy a
constitutional right to privacy which is binding
In comparison with the territorial spying its extraterritorial form ndash conducted on the territory
of another state ndash it is a more complex issue which determines the analysis of supplementary
international law provisions specially related to sovereignty
The principle of non-interference in sovereign affairs concomitant to principle of sovereignty
is recognized in the UN Charter itself which provides in Article 2(4) that ldquo[a]ll 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 Nationsrdquo Moreover the General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations declares that ldquo[n]o State or group of States
has the right to intervene directly or indirectly for any reason whatever in the internal or
external affairs of any other Staterdquo
Does transnational espionage breach the non-interference principle
Most commonly transnational espionage has been and still is conducted by States invoking
national security issues The main justification concerns the right of self-defense However in
the absence of a legal instrument regulating the specific circumstances and condition in which
spying is permitted to be conducted in self-defense the doctrinal view does not legitimate the
practice of states
On the other hand espionage conducted as preparation for an armed attack may be considered
a ldquothreat or use of forcerdquo precluded by the UN Charter and customary international law It is
therefore a violation of international law unless the use of force at issue is itself authorized by
the Security Council under chapter VII of the UN Charter or is exercised in self- defense
The doctrine is not consistent regarding this matter Intelligence will probably continue to
exist at the edge of international legitimacy However taking into consideration its
importance in international relations the blurred limits should seize to exist
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Current international context UN actions
Espionage was only one more topic from the agenda of the United Nations until May 2013
when it became the most debatable cause of international concern The event which placed
espionage on daily committee sessions of UN were the revelations made by whistleblower
Eduard Snowden about mass NSA surveillance
The revelations were first published in the Guardian and The Washington Post newspapers in
June based on some documents handed to the press by Snowden The Boundless Informant
documents one of the top-secret of NSA show the agency collecting almost 3 billion pieces
of intelligence from US computer networks over a 30-day period ending in March 2013
Regarding transnational espionage the documents also revealed the fact that Brazil is the top
NSA target in Latin America with spying that included the monitoring of Brazilian President
Dilma Rousseffs cellphone and hacking into the internal network of state-run oil company
Petrobras
Another scandal involving NSA concerns the claims that Angela Merkel the chancellor of
Germany was taped and moreover that French calls were intercepted Except the surveillance
of world leaders NSA conducted secret operations on private companies all over the world
for economical purposes
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Inevitably the United Nations did not remain silent on this matter In June the discussions
before the United Nations Human Rights Council focused on how to protect the human rights
of privacy and free expression in the digital age the UN High Commissioner for Human
Rights Navi Pillay noted that mass surveillance today poses one of the greatest threats to
human rights Without mentioning any specific facts she stated that mass electronic
surveillance and data collection are threatening both individual rights and the free functioning
of a vibrant civil society2 During the debates states identified the necessity of specific
international regulation related to this matter
After a joint struggle of states organizations and activists denouncing government mass
surveillance of citizens The Social Humanitarian and Cultural ndash Third Committee of the
United Nations General Assembly on December10 adopted a draft resolution ( UN General
Assembly 68th
Session Resolution adopted by SOCHUM AC368L45Rev3) affirming
that arbitrary surveillance and collection of personal information violate the universal human
right to privacy and expression The purpose of the resolution is essentially to reaffirm the
human right to privacy despite the fact that emerging technologies make pervasive and
boundless spying easier to undertake than ever before This resolution is the single UN
document addressing mass surveillance and it is considered to be only the first step towards
eliminating unlawful mass surveillance and electronic espionage Thereforethe issue remains
on the agenda of SOCHUM
Other international laws concerning espionage
Geneva Convention Art 5 addresses the treatment of persons detained as spies providing
that captured spies could be denied privileges that would permit spies to reveal damaging
information but otherwise requiring the same protection for spies as for other prisoners in
context this article prohibits the treatment of espionage in wartime as a capital offense
The Vienna Convention on Diplomatic Relations This treaty is concerned with the
privileges of a diplomatic mission while in a foreign country This agreement is one of the
earliest instances of nations placing legal limits on their own espionage activities
Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) (TRIPS) An
annex to the Marrakesh Agreement establishing the World Trade Organization TRIPS is
concerned with protection of intellectual property it prohibits private corporate espionage
UNrsquo objective is to create an efficient legal international framework which address the
espionage issues and which will be in accordance with the advancement of technologies
2httpwwwohchrorgENNewsEventsPagesDisplayNewsaspxNewsID=14074ampLangID=E
3 httpwwwunorggasearchview_docaspsymbol=AC368L45Rev1
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Organizations acting against mass surveillance
After the mass surveillance scandals non-governmental organizations reacted developing
different project to fight against the phenomenon
One of the most representative is Electronic Frontier Foundation the leading civil liberties
group defending rights in the digital world
On October 26 Electronic Foundation with the support of many other NGOs organized the
rally STOP WATCHING US protesting against NSA activities The goal of the group is to
pressure authorities into passing laws that remove the NSArsquos ability to gather data on
American citizens According to the official Stop Watching Us Web site 589017 people have
signed the petition
Together with Access Human Rights Watch Amnesty International and Privacy
International the NGOs addressed an open letter to the United Nations General Assembly on
November 10 2013 calling upon all states members to take a stand against indiscriminate
mass surveillance interception and data collection both at home and abroad and to uphold the
right of all individuals to use information and communication technologies such as the
internet without fear of unwarranted interference
Privacy International also played an important role in this action against espionage in both
its forms Registered as a charity in the UK it is committed to fighting for the right to privacy
across the world One of its most important projects is the Surveillance Industry Index
consisting of a collection of documents on the private surveillance sector There are 1203
documents detailing 97 surveillance technologies contained within the database The Index
features 338 companies that develop these technologies in 36 countries around the world This
research was conducted as part of our Big Brother Incorporated project an investigation into
the international surveillance trade that focuses on the sale of technologies by Western
companies to repressive regimes that intend on using them as tools of political control
Privacy International hopes its research into firms that sell surveillance equipment to
governments around the world will spark a debate on regulating these powers that present a
grave threat to privacy everywhere
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Suggestions
Within the SOCHUM committee all states should discuss possible further actions to regulate
the espionage proposing solutions which are in accordance with the development of the
technology and correspond to the issues the global community is facing
During the discussions in the committee there are fundamental aspects which should be
addressed
Are there any legal limits in conducting lawful espionage activities If not what limits
should be the most effective
Is espionage justified by self-defense of states
How can UN protect the citizens of the states which have not ratified the UN
Resolution against mass surveillance
Will the international legal framework related to industrial espionage affect
fundamentally the world economy
What is the most efficient legal international framework related to espionage taking
into consideration the current international context
What sanctions should be applied to states breaching the international obligations
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present
A Bd Mihail Kogălniceanu nr 36-46 Complexul Studenţesc Mihail Kogălniceanu Cămin B camera 122B
E secretariatbismuncom W wwwbismuncom Tel 0213104264
Bibliography
Websites
httpsoptinstopwatchingus
httpwwwhrworgnode120813
fileUsersfloriDesktopThe20Surveillance20Industry20Index20An20Int
roduction207C20Privacy20Internationalwebarchive
httpwwwejiltalkorg
wwwwikileaksorg
wwwprivacyinternationalorg
Books
Keith Laidler Surveillance Unlimited How Wersquove Become the Most Watched People
on Earth
Ernest Volkman The History of Espionage The Clandestine World of Surveillance
Spying and Intelligence from Ancient Times to the Post-911 World
Terry Crowdy The Enemy Within A History of Espionage
Timothy Walton Challenges in Intelligence Analysis Lessons from 1300 BCE to the
Present