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BUCHAREST INTERNATIONAL STUDENT MODEL UNITED NATIONS 2014 Social, Humanitarian and Cultural Affairs Committee Espionage Infringement of the Right to Privacy or Legitimate State Practice? Study Guide

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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