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Disarmament and International Security

Topic A: Contemporary Espionage

Chair: Ary Hansen

Moderator: Merve Ciplak Vice Chairs: Mathilde Adant, Christopher

Miller, Tara Raizada

April 10 – 13, 2014

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Contemporary Espionage

Classified documents released by former American intelligence analyst Edward Snowden

have exposed the surveillance by the United States and its National Security Agency (NSA) on allies

such as France, Germany, Brazil, Mexico, and Spain, as well as on offices of the European Union

(EU) in Washington, New York, and Brussels. Accusations against the US intelligence community

include tapping German Chancellor Angela Merkel’s personal cell phone and accessing 70 million

phone records of French citizens. Snowden also produced many documents pertaining to the British

NSA equivalent, Government Communications Headquarters (GCHQ), naming them an equally

egregious offender as the NSA with regards to invasive international electronic intelligence

gathering.

The alleged actions of the NSA have led to the breakdown of diplomatic relations between

the United States and its allies. American ambassadors have been called in to the governments of

these countries to answer for the NSA’s actions, and many deals between the United States and their

allies have fallen through, such as the transatlantic Terrorist Finance Tracking program, a joint US-

EU effort, which was recently voted into suspension by the European Parliament in light of these

revelations. The offense taken by the international community at the NSA’s reaction is due to what

they view as a breach of trust, since all the countries exposed by Snowden are considered allies with

the United States.

There exists an intelligence-sharing and anti-spying alliance between the Anglophone

countries of the United States, the United Kingdom, Canada, Australia, and New Zealand. Known

as the UKUSA Agreement, or colloquially as “Five Eyes,” it was originally drafted in 1946 as an

alliance between the two governments and their intelligence agencies - primarily the NSA and

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GCHQ, which are inextricably linked, but also the CIA and MI6. Now, this list includes the

Canadian Secret Intelligence Service, the Australian Secret Intelligence Service, and New Zealand’s

National Assessment Bureau. None of these countries may conduct espionage within the others’

borders. The global scope of the “Five Eyes” allows each country to focus on its geographic region

so as to avoid redundant intelligence gathering and jointly incurred costs; for example, Australia and

New Zealand constitute the Asian and Far East bastions of the organization. No other countries are

part of this agreement, but both France’s Directorate-General for External Security (DGSE) and

Germany’s Bundesnachrichtendienst (BND) have expressed a desire to join.

The North Atlantic Treaty Organization purportedly shares intelligence among its members,

though evidently this paradigm is not comprehensive; the Association of Southeast Asian Nations

also has measures for this capacity, as do the African Union, Organization for Security and Co-

operation in Europe, and European Union, though all with various levels of success. Notably, the

Arab League does not employ this tactic.

Debate should center on the creation of comprehensive, global resolutions regulating

international surveillance. Delegates will argue issues of privacy on an individual and state level, the

sharing of potentially high-risk information, mandated sharing of information, and the formation of

information-sharing organizations. Particularly interesting will be the debate between nations that

share information, international organizations that choose specifically not to, and nations that are

individually reluctant to share information. Resolutions should also address consequences for

espionage, unregulated surveillance, and the sharing of information that could pose international

security threats.

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Intelligence is defined by the MI5, the domestic counterintelligence and security agency of

the United Kingdom, as “information of all sorts gathered by a government or organization to guide

its decisions.” It can be summed up as the gathering, analysis, distribution and utilization of

information, with the goal of furthering its own ends, relative to other states, political groups or

movements. Intelligence is practiced by every state; it is distinct from espionage.

Espionage, however, is defined by the MI5 as “a process which involves human sources

(agents) or technical means to obtain information which is not normally publicly available.” It is thus

clandestine, per se, and most of the time reprehensible by the law. The practice of espionage by

states is something very common, though unclear in relation to international law.

In the ancient Chinese military treatise The Art of War, Sun Tzu wrote, “What enables the

enlightened rulers and good generals to conquer the enemy at every move and achieve extraordinary

success is foreknowledge. [It] must be obtained from people who have knowledge of the enemy's

situation.” Indeed, espionage is one of the main elements of international relations and wars:

“knowledge is power.” Its own nature makes it very difficult to regulate.

We will be focusing on the players of the public sector regarding espionage – that is, the

intelligence agencies and special police that take the offensive and engage in active espionage abroad.

Espionage has been carried out for centuries. Nations use espionage methods to gather

information about other states’ policies, and are fundamental to developing their own policies.

These techniques have been used against adversaries, but also against allies. As Lord Palmerston, a

British Congressman in the mid-nineteenth century, said, "We have no eternal allies and we have no

perpetual enemies. Our interests are eternal and perpetual, and those interests it is our duty to

follow." Indeed, no matter how close the bonds a state has with another, it can never be sure of its

allies. Moreover, even if some states have strong relations with one another, their policies can differ

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on some substantial points. It will therefore be useful to provide other governments with

information about their policies, as it will help others to develop their own policies and to be able to

balance and negotiate on the diplomatic stage. Information sharing can be useful in many aspects:

foreign policy, economic interests, or defense, for example. The self-interest of nations, as described,

is a central tenet of realism in international relations theory.

Mutual spying is common knowledge: everybody does it, and it is widely accepted, but it is

rare that it comes to light. Spying on allies usually isn't considered as a violation of the standard

practices of international relations. Between such close allies as the United States and Israel, for

example, mutual trust is idealistic, at best. The National Security Agency (NSA) keeps records on

Israel. The United States government wants to know of Israeli political changes before they occur,

for obvious reasons concerning their own foreign policy and the situation of stability in the Middle

East.

Timeline of Events

September 1960

Two NSA cryptologists, William Hamilton Martin and Bernon F. Mitchell, revealed the great extent

of the United States' espionage program, including on its allies. The two defected to the Soviet

Union, taking with them a trove of information about the United States’ espionage programs and

incursions into other countries’ airspace. A 1963 secret report from the NSA stated that, “Beyond

any doubt, no other event has had, or is likely to have in the future, a greater impact on the Agency's

security program.” The event is now known as the Martin and Mitchell defection.

1947-1991

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During the Cold War, the Western Bloc (the North Atlantic Treaty Organization, headed by the

United States) and the Eastern Bloc (the Warsaw Pact, headed by the Soviet Union), conducted

extensive espionage against one another. In this time, the Central Intelligence Agency (CIA) and the

Komitet gosudarstvennoy bezopasnosti (KGB, the main security force of the Soviet Union) became widely

known for their espionage activities.

April 2009

At the G20 summit in London, the British Government Communication Headquarters (GCHQ)

intercepted phone calls and monitored computer usage of G20 delegates. The British government

sanctioned these actions and the information was passed to British ministers. The actions were not

revealed until June 2013.

2010

Operation Aurora: Google detected an attack on their infrastructure, originating from China; twenty

other large companies were also targeted. Later on, the U.S. government was informed that the

attack was directed from the Chinese government level. The U.S. issued a diplomatic démarche. The

Chinese government responded that acts of hacking are criminal under Chinese law and that the

Chinese government was not responsible for the Google espionage acts.

June 2013

Edward Snowden reveals the existence of the Dropmire program of the NSA, a secret surveillance

program aimed at foreign States, including NATO allies, and its correspondent program Tempora

set up by the GCHQ.

September 2013

It is revealed that the Russian government spied on the delegates at the G20 summit in St.

Petersburg through goodies bags filled with USB drives and telephone chargers.

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September 2013

The partially state-owned Belgian telecom company Belgacom was victim of a cyber attack.

According to Snowden, the GCHQ was responsible.

October 2013

Australian embassies were used as a part of the U.S. surveillance program to spy on China.

October 2013

Russia accuses China of spying via imported irons and water-boiling kettles. The state-owned

channel Rossiya 24 alledged that Chinese imports of electric irons, kettles, and even mobile phones

and car dashboard cameras contained “spy chips” with microphones, being used for the most part

to spread viruses. The devices are supposedly capable of connecting to any computer within a 656

foot radius and from there connect to unprotected Wi-Fi networks and send out spam over

company networks.

Snowden’s recent revelations caused the level of controversy they did because he reported

on spying against allies. Barack Obama once said of Germany: "[we are] allies who will listen to each

other, who will learn from each other, who will, above all, trust each other." Trust has been broken

in “friend-on-friend” spying, like the NSA espionage reported by Snowden.

In order to discuss espionage, delegates must take a realistic approach. Espionage is

commonly accepted, although this does not make it legal. It becomes a matter of controversy when

it is discovered, though by its very nature it is often not. Additionally, political motivations play an

important role. Once citizens are informed, the political leaders cannot avoid the reality of the

situation and very often work to control the discourse surrounding it.

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Espionage also raises questions of personal privacy. Taping the personal phone

conversations of world leaders is considered diplomatic injury. There is a balance to be found

between security and privacy concerns. Further, espionage, as common as it may seem, constitutes a

break of the sovereignty of a country. The right of a country to control information, apart from its

right to seek out information, is an important diplomatic debate. The increasing power of the

intelligence agencies can also be a source of concerns. Without proper supervision, they may act

without the consent and support of the government, beyond all democratic control. Many believe

that limits have to be set on the political control of intelligence agencies in order to preserve the

wishes of a democracy.

The justification of the act is also of importance. Spying can seem justified in the case of

threat to the national security, for example. It is what justifies spying on “enemies.” However, in

many cases, there is no such national security issue. As Jean-Marc Ayrault, French Prime Minister,

said of the Snowden scandal: "[it is] incredible that an allied country like the United States at this

point goes as far as spying on private communications that have no strategic justification, no

justification on the basis of national defense."

There is a great difficulty in stating the legality of cyber espionage. No state actor has ever

tried to defend a case of cyber espionage using international law. Because it is so common, it is very

often overlooked. However, the general consensus is that cyber espionage breaches the sovereign

integrity of the states, and should thus be considered as an infraction. This can be thought of as

customary law, which the International Court of Justice defines as “evidence of a general practice

accepted as law.” The difficulty is that cyber intrusions do not offend the territorial integrity of

states.

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The problem is that espionage activities take place out of the public eye and out of the usual

arenas of international diplomacy. According to the International Law Association's Committee on

Formation of Customary International law, "a secret physical act is probably not an example of the objective

element. And if the act is discovered, it probably does not count as State practice unless the State tries to assert that its

conduct was legally justified." The notion of the rule of law presumes that the rule is public.

Existing conventions:

There is, to date, no convention on espionage. Conventions regulate the diplomatic relation between

states and human rights violations within states or across national borders. The Vienna Convention,

in 1961, established the inviolability of diplomatic agents, freedom of movement, and

communications. In 2001, the Budapest Convention on Cybercrime became the first attempt to

harmonize national laws in that matter, sharpen investigations, and increase international

cooperation. This agreement was drawn up by the Council of Europe. 41 states have ratified it and

11 have signed it, but not ratified it. In September 2011, China, Russia, Tajikistan, and Uzbekistan

submitted to the UN a draft International Code of Conduct for information security. In it, they

pledge not to use information technologies to carry out hostile tactics. In November 2013, Germany

and Brazil put forth an anti-spying UN resolution, reacting to the Snowden revelations. They

stipulate that "privacy is essential to democracy,” under the angle of human rights law. 21 countries are

likely to support this resolution.

Bloc Positions

United States, United Kingdom, Australia, New Zealand, and Canada: This extensive

surveillance is necessary for international security. A global war on terror is being fought, and as

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such all countries should put to use any resources they have to win it. The United States and its

allies, especially Canada, the United States, and Australia, are conducting necessary intelligence

collection in the international fight against terror. These countries recognize that they may have

overstepped their brief in tapping the personal phones of world leaders, as the primary threats in the

war on terror are non-state actors, but favor the approach of better safe than sorry. However,

economic espionage should be prohibited.

Ally countries against which state-on-state espionage has been committed: In

Europe, this includes France, Spain, Germany, Italy, Greece, and European Union offices. In

the Americas, this includes Mexico, Brazil, Colombia, and Chile. In Asia, this includes

Indonesia, Japan, South Korea, and India. Countries such as the United States, United Kingdom,

and Australia have violated our privacy by spying upon our heads of state when we are their allies,

harking back to the state-on-state espionage of the Cold War, except with an even more egregious

breach of trust. The chief threat in the War on Terror is non-state-affiliated groups, not states, and

certainly not these allied countries. These nations are upset with the intelligence collection

performed by the “Five Eyes” nations, especially the United States, Britain, and Australia, and desire

acknowledgment of and cessation of this wrongdoing, and possibly reparations of some kind as well.

Diplomatic relations between these nations (especially Germany, Brazil, and France) and the United

States are somewhat strained, though less so than they were when the news broke. Indonesia-

Australia relations are frayed, as are Canada-Brazil’s. Western European countries such as France

and Germany want to create a “Five Eyes”-like agreement with the United States to facilitate

intelligence sharing in the interests of international security, as well as to prevent further espionage

by the United States, as this would be prohibited under the agreement.

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China, Russia, former Soviet Union nations: Economic and information espionage

should be allowable, as cyberspace is the public domain. However, surveillance that the United

States has conducted against Hong Kong and Mainland China is an illegal act of espionage.

Additionally, information technology warfare should not be allowable. Russia, as the nation

sheltering Edward Snowden, will denounce the activities of the United States’ National Security

Agency and Britain’s Government Communications Headquarters as unlawful. Russia will also

endeavor to leverage its connection with Snowden. China and Russia would ostensibly like to

continue espionage against the United States and its allies.

Questions to Consider: This list is not exhaustive, but is meant to help you frame the topic as you

consider its implications and your country’s position.

1. Should international espionage be allowed? If so, to what extent?

2. Should intent make a difference in the legality of espionage?

3. How should nations approach information sharing?

4. The United Nations charter bans secret treaties. Can nations ally themselves for

information sharing purposes?

5. How does national security inform your nation’s standpoint?

6. How should espionage laws apply to cybercrime or multinational corporations?

7. Is committing espionage or reporting it the greater crime? How should the international

community approach each?

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Recommended Sources:

Vienna Convention on the Law of Treaties:

http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

Budapest Convention on Cybercrime:

http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm

Proposed international code of conduct for information security:

http://www.citizenlab.org/cybernorms/letter.pdf

Right to Privacy in the Digital Age from Human Rights Watch:

http://www.hrw.org/sites/default/files/related_material/UNGA_upload_0.pdf

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