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TEMPORARY COMMITTEE ON THE ECHELON INTERCEPTION SYSTEM

THE SECRETARIAT

COMMUNICATION TO MEMBERS

Members will find attached a document submitted by Mr Dimitri YERNAULT, Université Librede Bruxelles:

« ECHELON » AND EUROPE

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ECHELON AND EUROPE1

Dimitri YERNAULT,Research assistant

Centre de Droit publicUniversité Libre de Bruxelles

Brussels, 13 September 2000

Journal des Tribunaux – Droit Européen, October 2000

The new information technologies, in addition to the fantastic scope they offer for expansion inthe fields of the advancement of knowledge and trade, also represent a considerable threat to theright to respect of privacy. This is true in the field of purely private relationships, simply takingthe example of the uncontrolled recording of individual consumption patterns. It is also true, aswitness the unmasking of the global electronic surveillance programme known as Echelon, of therelationships between the individual and authority. In the case of Echelon there is the extra factorthat anybody (surveillance no longer being restricted to officials of hostile states or members ofallegedly terrorist groups) may be eavesdropped on by any means (any type of electroniccommunication, pursuant to unknown rules) and anywhere (national sovereignty having becomea dead letter).

The European Union and its members are now living in the eye of the Campbell report2 and theresulting political implications. This report reveals the existence of several telecommunicationssurveillance systems, the most impressive of which appears to be the Echelon programme,describes the electronic communications interception technologies used (satellite, all forms oftelephony, radio and microwave, etc.), and gives a detailed account of the operation of Echelon.The Campbell report devotes special attention to allegations that US companies had been giveninformation on the operations of their European rivals by receiving information intercepted byEchelon.

However, Echelon also raises a new problem which is both crucial and neglected, affectingmodern human rights law: the demarcation of what Professor Emmanuel Decaux calls theterritory of human rights. The new police cooperation machinery illustrates this new situation: a

1 This article is a much abridged and reformatted version of a study which will appear in issue 2000-1 of the RevueBelge de Droit International entitled ‘From fiction to reality: the Echelon global electronic interception programmeand the international responsibility of states in the light of the European Convention on Human Rights’. Our thanksto JTDE and RBDI for allowing this.2 The Campbell report (named after the ITV journalist who played such a part in revealing the existence of Echelon)is one of a larger group of five working documents entitled Development of Surveillance Technology and Risk ofAbuse of Economic Information conducted by the STOA panel (Scientific and Technological Options Assessment,PE 168.184, Luxembourg, 1999). The documents produced by STOA, which is attached to the European Parliament,have been edited by Dick HOLDSWORTH: Peggy BECKER, presentation and analysis, volume 1/5 (the only studycurrently available in French); Duncan CAMPBELL, The state of the art in Communications Intelligence(COMINT) of automated processing for intelligence purposes of intercepted broadband multi-language leased orcommon-carrier systems, and its applicability to COMINT targeting and selection, including speech recognition,vol. 2/5; Frank LEPREVOST, Encryption and cryptosystems in electronic surveillance : a survey of the technologyassessment issues, vol. 3/5; Chris ELLIOT, The legality of interception of electronic communications : A concisesurvey of the principal legal issues and instruments under international, European and national law, vol. 4/5; NikosBOGOLIKOS, The perception of economic risks arising from the potential vulnerability of electronic commercialmedia to interception, vol. 5/5.

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set of authorities more or less organised by more or less public international agreements willmake up a network of de facto directories whose operational powers will henceforth besuperimposed on traditional national territorial powers, giving rise to serious risks of legalvacuums to the detriment of the security which should govern the protection of fundamentalrights3.

As the evidence, including various forgotten official sources, piles up (1.), the EuropeanParliament has set up a temporary committee which will probably play a crucial role in the futureof the campaign against Echelon (2.). We need to consider how resolutely the Commission willestablish Echelon’s breach of the principle of national sovereignty which entails the prohibitionof extraterritorial telephone tapping (3.). Breaches of this prohibition are moreover only oneaspect of the violations of the right to privacy guaranteed by Article 8 of the EuropeanConvention for Human Rights. The secrecy of the rules governing Echelon constitute a violationof the principle of lawfulness which should govern interference with privacy such as electronicinterception; its explanatory and general nature entails a violation of the principle of necessity ina democratic society (4.a.). These breaches, imputable to states which are parties to theconvention (Germany, for passive participation confined to hosting an interception station andthe United Kingdom for active participation by its intelligence services), may properly becontested before the European Court of Human Rights, as Echelon is alleged to constitute a bodyof administrative practices whose existence obviates the use for individuals to exhaust theremedies in the participating countries, which individuals may claim the status of potentialvictims of secret interference with their privacy (4.b.).

1. Echelon: the evidence piles up

(a) Echelon summed up: the unofficial details

Echelon is said to consist of a global network of computers able to trawl automatically throughmillions of intercepted messages – some speak of two million communications a minute or threebillion a day – for pre-programmed key words in static or mobile telephone conversations, faxand telex messages and electronic mail. This fantastically high-powered network is claimed tofeed electronic memories and data banks from a network of interception satellites covering theentire globe. There are claimed to be relay and listening stations in seven countries: the UK andGermany (Europe), Japan (Asia), Australia and New Zealand (Oceania), Canada and the UnitedStates (America). The US National Security Agency (NSA) is at the heart of this global messageinterception organisation. In conjunction with the intelligence services of four other countries(UK, Australia, New Zealand and Canada) it set up the UKUSA system, a surveillance networkwhich arose in the wake of the Second World War. The ‘Dictionary’ (group of programmes tosort intercepted messages) of the Echelon listening stations is said to contain key words namednot only by the intelligence agency of the country concerned but also by those of the other fourcountries involved. The struggle against the Soviet bloc has thus gradually given way to a newnational security concept which now includes commercial and economic intelligence4.

3 Mélanges M.A. EISSEN, Brussels and Paris, Bruylant and LGDJ, 1995, p. 65.4 It is sometimes alleged that countries other than those mentioned also belong to the network. Our attention isfocussed on Germany and the UK because of the number of corroborating pointers to their possible involvement andbecause these two states are both members of the EU and parties to the European Human Rights Convention. Therefollows a short and non-exhaustive list of Internet sites collecting information on Echelon:« http://www.fas.org/irp/program/process/echelon.htm » (site of the Federation of American Scientists with a

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(b) Echelon in official documents

The daily and electronic press has often recently rambled on about section 309 of the IntelligenceAuthorisation Act for Fiscal Year 2000 approved by the US Congress in November 19995. Thisrequired the US intelligence services, including the NSA, to indicate the legal basis on whichthey were conducting electronic interception. The outcome of the hearings has not becomeknown and in any case section 309 related only to the protection of US citizens’ privacy. Peopledo, however, often forget to read this act in detail; it also includes a section 502 in its chapterdealing with military intelligence agencies. This innocent-looking budgetary provision is entitled‘Funding for Infrastructure and Quality of Life Improvements at Menwith Hill and Bad AiblingStations’ and confirms the existence of US electronic intelligence bases on the Europeancontinent. The preparatory work for the National Defence Authorisation Act for Fiscal Year2000 confirms that the Menwith Hill base is run by the NSA6. One of its acknowledged functionsis missile detection which, however, involves only two of the 25 radomes officially listed by theUK Government7. The NSA base at Bad Aibling in Germany was at least used as a hub for USand Nato forces’ communications during the Kosovo conflict8. While the US authorities areapparently anxious to protect US citizens against electronic invasion of privacy, the Congressmade a strengthened NSA a strategic priority. The NSA has also supported the lodging of apatent application by three of its officials to protect an intercepted message sorting procedurewhich is highly reminiscent of ‘Dictionary’9

Official UK Parliament documents confirm not only that the Menwith Hill basis is operated bythe NSA but also that it is jointly run by HM Government10. The latter was still, in June 2000,refusing to tell Parliament of the secret defence agreements linking it to the US Administration;only the 1951 agreement governing the establishment of NATO forces could be consulted in theParliament library11. However, given that the Government Communications Headquarters (UKelectronic intelligence service) internet site openly states that 'all GCHQ systems are linked

number of references); « http://www.lemonde.fr/doss/0,2324,3156-1-MIA,00.html » (Le Monde);« http://www.tscm.com/cseukusa.html » ; « http://www.transnationale.org/sources/information/RFI/Default.htm »(report broadcast by Radio France International on 15.02.1999) ; « http://www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB23/12_01.htm » (George Washington University presents declassified documents ofthe Air Intelligence Agency proving the existence of Echelon) ; « http://www.zdnet.fr » and« http://www.zdnet.co.uk » (ZDNet sites giving the most detailed and up-to-date information as at 30 June 2000,including the latest articles by D CAMPBELL) ; « http://www.cyber-rights.org/interception/echelon »; and manyothers.5 Public Law 106-120 of 3 December 1999, 113 stat. 1619.6 See tables to section 2401 of the bill tabled by Representative SPENCE on« http://www.house.gov/hasc/billsandreports/106thcongress/hr1401ih.htm » which clearly indicate that the MenwithHill base belongs to the RAF and is run by the NSA.7 Written question by Mr BAKER, House of Commons bulletin of 9 November 1998, col. 9.8 Congress hearing by the House Armed Services Committee, on 17 February 2000, of General W CLARK, C-in-Cof the Nato forces during the conflict: « http://www.house.gov/hasc/testimony/106thcongress/00-02-17clark.htm ».9 Patent application No. 5,937,422 lodged on 10 August 1999 at the US Patent and Trademark Office,« http://164.195.100.11 ».

10 The presence of UK personnel at all levels ensures that British interests are safeguarded (oral question by MrBAKER, House of Commons sitting of 6 April 1998, col. 9); the site employs 415 US military and 989 US civilianstaff, 392 UK civilian staff; the number of Government Communications Headquarters staff was not revealed forreasons of national security (written question by Mr Baker, House of Commons Bulletin, 12 May 2000, col. 513).11 Written question by Lord MARSH, House of Lords bulletin of 5 June 2000, co. 128-129.

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together on the largest local area network in Europe – which is connected to other sites aroundthe world via one of the largest wide area networks on earth'12, it may reasonably be concludedthat an international electronic surveillance system does indeed exist, run by five 'Anglo-Saxon'countries.

If its existence was unknown to a former New Zealand Prime Minister13 it was confirmed inearly 1999 by the head of the Australian electronic intelligence service (Defence SignalsDirectorate),14 but the most explicit official source is still chapter 27 of the 1996 report by theCanadian Auditor-General's report, which has amazingly also remained in the shadows. After adescription of how Canada conducts its Signals Intelligence (electronic intelligence) policy, weread that 'Canada has close formal intelligence relationships with a number of countries. Theclosest of these were forged during World War II and solidified during the Cold War. Linksremain particularly strong with the United States, the United Kingdom, Australia and NewZealand. Intelligence products, including analyses and assessments, are exchanged, andtechnical assistance is provided by each to other'15.

France, which also has its own foreign military communications interception system (using theHelios 1 satellite)16, has nevertheless objected to being in its turn a possible target of USelectronics intelligence and therefore set up a parliamentary information mission in February200017. The Paris Prosecutor's Office entrusted the DST with an investigation in early July200018.

In Belgium, whose Ministry of Justice has called Echelon an attack on territorial sovereignty anda threat to the right to privacy19, there have been a number of parliamentary debates, duringwhich its Foreign Minister stated that he would take the action required if Echelon were provedto exist, a matter on which he did not conceal his concern20. These debates followed the approvalof the 1999 report of the Standing parliamentary supervisory Committee for the intelligence andsecurity services (the R Committee)21, and the work in progress at the European Parliament. On

12 http://gchq.gov.uk/textonly/about/technology.html13 D. LANGE, preface to Nicky HAGER's book Secret Power. New Zealand's Role in the International Spy Networkpublished in 1996, http://www.fas.org/irp/eprint/sp/sp_f1.htm.14 D. CAMPBELL, 'Australia first to admit "we’re a part of global surveillance system"', Telepolis 28.05.1999 (on-line magazine, 'http://www.heise.de/tp/english/inhalt/te/2889/1.html').15 Chapter 27, para. 27.28 of the Canadian Auditor-General's report for 1996 'http://www.oag-bvg.gc.ca'. Thiscollaboration was formally confirmed in the 1999-2000 report of the Commissioner for the TelecommunicationsSecurity Centre, 'http://csec-ccst.gc.ca/reports/1999-2000/review_f.html'.16 National Assembly, opinion of the national Defence Committee on the 1999 finance bill, 8 October 1998, No1114, p. 53.17 National Assembly, Defence Committee, 29 February 2000, Minutes No 27.18 Libération of 5 July 2000 points out that the 'Direction de la Surveillance du Territoire' was to carry out theinquiry, while the 'Direction Générale de la Sécurité extérieure,' with its own electronic intelligence infrastructure,was cooperating with the NSA….19 Answer to oral question by Mr VAN HOOREBEKE, records of the Committee on Justice of the BelgianChamber, 13 February 2000.20 Record of the plenary sittings of the Senate, Thursday 17 February 2000, afternoon sitting; record of theCommittee on Foreign Affairs of the Belgian Chamber, Tuesday 22 February 2000.21 Report by Mr HORDIES and Mr DE DONNEA on the 1999 activities of the Standing Supervisory Committee onthe intelligence and security services, 14 February 2000, Doc. parl. Chambre 50 430/001 and Senate 2-332/1, fromwhich it appears that the Belgian services, claiming that they do not have the resources required, have not carriedout any investigation of Echelon going beyond a superficial consultation of sources in the public domain. On 8 May2000 the R Committee received a confidential report, which is still classified, in which it concluded that Echelon did

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8 May 2000 the R Committee received a further report which is still classified. Having taken theForeign Minister at his word, a socialist member proposed at the Senate sitting of 6 July 2000that Belgium should bring proceedings before the European Court of Human Rights for a breachof Article 8 of the ECHR on the grounds first that Germany can no longer be unaware that it ismaking its territory available to the NSA to conduct interceptions of telephone calls to thedetriment of the European public’s right to privacy on the one hand, and second that the UnitedKingdom is not only acting as host for at least one NSA site but is also playing an active part inthe interception of telephone calls under the UKUSA Agreement. The Belgian Foreign Ministryreplied in essence that the drawbacks of initiating proceedings as a State before the StrasbourgCourt were outweighed any symbolic victory Belgium might achieve22. Between those favouringand those opposing referral to the Strasbourg Court the President of the Senate proposed that thedebate should be held over until Parliament had reconvened, the Prime Minister, heard by the RCommittee subsequently having decided that debate would be premature pending the outcome ofthe European Parliament’s work23.

2. Echelon and the European Parliament

The European Parliament has been trying to find out more about Echelon since an initial studypublished on 6 January 1998 stated that ‘within Europe, all e-mail, telephone and faxcommunications are routinely intercepted by the United States National Security Agency,transferring all target information from the European mainland via the strategic hub of Londonthen by Satellite to Fort Meade in Maryland via the crucial hub at Menwith Hill in the NorthYork Moors of the UK’24. A resolution of 16 September 1998, quoting Echelon by name, thenexpressed concern at electronic surveillance and its economic fallout in respect of transatlanticrelations25. The debate resumed in 1999 with the publication of five new reports commissionedby the STOA panel and conspicuously resulted in the hearing of the journalist Duncan Campbellon 22 February 2000 by the Committee on Legal Affairs and the Internal Market and theCommittee on Citizens' Freedoms and Rights, Justice and Home Affairs26.

In addition to the stir caused in the national parliaments, Echelon was raised during Parliament’ssitting of 30 March 2000. Commissioner Liikanen announced receipt of a letter from the USAdministration denying any economic espionage27 and a communication from the UKGovernment claiming that UK law regulated electronic interception in detail and had beenapproved by the European Commission for Human Rights. A British Labour MEP was even exist, but which minimised its scope (only satellite communications, i.e. 1% of international communications) inrespect of other allegations.22 Record of the sittings of the Senate, Thursday 6 July 2000, p.m. sitting no. 2-61.23 De Morgen 31 July 2000. The UK Ambassador to Belgium reacted to the call for proceedings before theEuropean Court of Human Rights by saying that his country had better protection of privacy than anybody (La LibreBelgique 8 July 2000).24 Paragraph 2.4.1. of the first STOA report to have mentioned Echelon, An appraisal of the technologies of politicalcontrol, PE 166.499/Int.St/Exec.Sum. drawn up by V. WRIGHT of the Omega Foundation, Manchester.25 The resolution on transatlantic relations (paragraph 14) considered in particular that the risks of abuse, inparticular of Echelon, required protective measures concerning economic information and effective encryption (OJ12.10.1998, c. 313, p. 98).26 See Parliament’s site: http://www.europarl.eu.int/dg2/hearigs/20000222/libe/fr/default.htm.27 Mr WOOLSEY, one of its former directors, did however state on 23 February 2000 that the CIA was fightingalleged corruption by European undertakings in seeking to win foreign markets (Reuters press release onhttp://biz.yahoo.com/rf/000223/bnk.html). An in-depth investigation by the US NBC News network on 14 April2000 disputed the official argument http://www.msnbc.com/news/394993.asp?cp1=1.

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more forthright: ‘(…) everything that has been conducted, or will be conducted, is in completeconformity with United Kingdom law, with United States law, and most importantly, is done withcomplete respect and in complete conformity with, the European Convention on HumanRights’28. The Portuguese Minister of the Interior, whose country was providing the Presidencyof the Council during the first half of 2000, did, however, declare that ‘there was no doubt aboutthe existence of a telecommunications interception system’ and that ‘the question was about itsuse’29. The Justice and Home Affairs Council of 29 May 2000 which in part dealt withtelecommunications interception was careful not to take such a clear-cut position. Referring tothe work of Parliament, it simply referred the Echelon case to a working party. The Council bothcondemned the commercial aspects of telecommunications interception and affirmed its valuefor combating crime and the defence of national security. The attachment it reaffirmed to theECHR could, however, have led it to make a more outspoken condemnation of the abuse ofwhich Echelon has been suspected30.

In a resolution of 11 April 2000 which passed practically unnoticed, the European Parliament'sCommittee on Civil Liberties was less inhibited by detail in castigating Echelon on at least twogrounds: the absence of any notification of electronic interceptions carried out by one State onanother’s territory on the one hand and the disproportionate nature of systematic interception inrespect of the right to privacy on the other. The committee maintained that any State using suchan interception system should cease doing so31.

After lengthy procedural wrangling, Parliament finally decided on 5 July 2000 to set up atemporary committee on Echelon, the UK and German MEPs having been relentless in theiropposition to a committee of enquiry with wider powers, which had been principally supportedby the European Greens. The Temporary Committee, with an initial work programme planned upto 23 November 2000, has been instructed to ascertain whether Echelon exists and if so whetherit is compatible with Community law, to consider encryption as a means of protecting privacy, toanalyse the risks to European industry and if necessary to make political and legislativeproposals32.

The legal debate is not only whether Echelon is compatible with Directives 95/46/EC and97/66/EC which protect the privacy of personal data. Article 6(2) of the TEU also makes theEuropean Convention of Human Rights general principles of Community law. The resolutionadopted by the Committee on Citizens Freedoms and Rights, Justice and Home Affairs on 11April 2000 expresses doubts about the protection offered by the Convention regardinginterception by a Member State in respect of persons who are not its nationals. Similarly,Professor Elliott’s study entitled ‘The legality of the interception of electronic communications’(one of the five reports analysed by Parliament), simply notes the problem presented by the

28 The statements by Commission LIIKANEN and Mr EVANS appear in the untranslated record of proceedings ofthe European Parliament of 30 March 2000. It may be asked why conformity with US law should be claimed infront of Parliament; conformity with the Convention, as we shall see, is not without reservation. The whole passagelooks curiously like an admission.29 Libération 31.03.2000.30 Council press release of 29 May 2000, No. 3050/00, 2266th Council meeting.31 The motion was tabled on 31 March by Mr WATSON (PE 285.911) and was the subject of a number ofamendments (PE 285.911/1-13) before being approved on 11 April (minutes of the Committee on Citizens’Freedoms and Rights, Justice and Home Affairs, PE 285.918, vital for co-ordinating the final text).32 Decision of 5 July 2000, B5-0594/2000.

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interception of communications by a non Member country without offering any kind ofsolution33.

However, general international law on the one hand and the case law of the bodies of the ECHRon the other certainly allow actions contesting the validity of extra-territorial interceptions, andgoing beyond finding that an alleged offence has taken place. First because in its rulings theStrasbourg court has generated a body of general principles applicable both to telephone tappingand the recording of data on private life. Secondly, as no official or media investigations yetappear to have realised that the European Commission on Human Rights has had to takecognisance in at least one published decision of an application concerning the interception oftelefaxes sent between a British trade unionist and trade unions in Eastern Europe. There wasnothing out of the ordinary in this case which turned out to be inadmissible as clearly unfounded,unless it was the fact that the UK agencies were using a programme known as….’Dictionary’34,on which Echelon is based.

3. Echelon versus the general prohibition of extra-territorial acts of enforcement

One of the legal questions raised by Echelon concerns the geographical validity of the rulesgoverning it. Territorial sovereignty means that ‘international law acknowledges the extra-territorial normative powers of states, but rules out any extra-territorial powers of execution byforce’.35 In other words, a State may extend the field of application of its legislation beyond itsown territory but may not do so in respect of enforcement without obtaining the consent of theState on whose territory it is carried out.36 Moreover, by virtue of this basic principle ofinternational law a foreign judgment or administrative act requires an order for enforcement bythe State on whose territory the legal act in question is to take effect.

Thus, as Professors David and Salmon maintain, ‘a State is “a fortiori” prohibited from carryingout arrests, investigations, enquiries, searches, abductions or seizures'37. The draft InternationalLaw Institute Resolution on the limits laid down by international law to the powers of Statesover persons within their jurisdiction tabled in January 1999 points out that the State, having amonopoly of acts of enforcement on its territory, is therefore alone empowered to authorise

33 See the summary of the Elliot report which states that ‘there do not appear to be adequate legal processes toprotect privacy against unlawful interception, either by foreign governments or by non-governmental bodies’, p. 1and its conclusion (p13).34 Decision of 27 June 1994 in Christie v. UK, Appl. No. 21482/93, DR 78-A, p. 119. An extraordinary lengthyjustification for an inadmissibility decision , included the following in its description of the facts of the case: In orabout July 1991, it came to the attention of the applicant, in the context of a Granada television documentary‘Defending the realm’, that telexes addressed to himself from East European trade unions were being routinelyintercepted by GCHQ (Government Communications Headquarters) which is the United Kingdom’s centralintelligence-gathering centre. Information from those telexes had been collated and reported to other governmentagencies. The evidence for these allegations was provided anonymously by a former GCHQ employee, who alsostated that at a particular address in London all telexes passing in and out of London were intercepted and fed into aprogramme known as ‘the Dictionary’, which picked out key names and words. He stated that ‘the Dictionary’ wasmonitored by carefully vetted British Telecom employees to give the impression that GCHQ was not carrying outthe interception and that warrants were not obtained for this activity.35 N.QUOC. DINH (�) P. DAILLER and A. PELLET, Droit international public, 6th ed., Paris, L.G.D.J., 1999,p. 476 and p. 502 respectively.36 See in particular the judgment of 7 September 1927 by the Permanent Court of International Justice in the Lotuscase, series A No 9 p. 18.37 J. Salmon and E. David, Droit des gens, University of Brussels, 1999-2000, p. 248.

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similar acts conducted on its territory by bodies of another State, and to do so before such actsare carried out. The Institute also formally lays down that individuals must be able to disputeextra-territorial acts affecting them.38

The debate is not confined to the international law specialists. Community law also includestexts dealing with extra-territorial telephone tapping, which cannot be unknown to the EU Stateswhich are also parties to Echelon. The first recital in the Council resolution of 17 January 1995on the lawful interception of telecommunications is perfectly clear ‘reaffirming the need, whenimplementing telecommunications in interception measures, to observe the right of individuals torespect for their privacy as enshrined in the territorially applicable national law’. 39 Havingbeen consulted on another Council draft resolution on the same topic, the European Parliamentnoted that ‘this resolution is not binding in nature and gives law enforcement authorities in theMember States no right of interception outside their own jurisdiction’.40 Respect for territorialsovereignty is all the more topical as the draft Council of Europe convention on cyber-crimeunveiled on 27 April 2000 and negotiated with the US in particular, still allows for the possibilityof electronic seizures and searches and telephone tapping outside the territory of the requestingState in the absence of agreement on the form international collaboration is to take41. Similarconcerns moved the European Parliament in February 2000 to delete Article 18 of the draftCouncil Act establishing the Convention on mutual assistance in criminal matters between theMember States of the European Union as this provision would have allowed the interception ofelectronic communications on the territory of another Member State without technical assistanceof that Member State42

The protection of privacy referred to in the ‘Safe Harbour’ rule invokes the same principles:pursuant to Article 26 of Directive 95/46/EC, data may be transferred to other States only if theother country ensures an 'adequate' level of protection of the right to privacy.43

Any interceptions carried out under Echelon would then be extra-territorial in their effect whichwould put them in clear contravention of the most elementary principles of international law, aswell as with European law in general, whether deriving from the Council of Europe or the 38 ILI ann. Vol. 68-1, 1999, on the preparatory work for the 1998 Berlin session and in particular the draft resolution(pages 602- 605).39 OJ C 329 of 4.11.1996, pp. 1-6. This resolution, drawn up in response to US pressure and sometimes known as‘ENFOPOL’, is a source of some concern as the States are attempting via third pillar’ policies to set up machineryderogating from the domestic rights protecting privacy against telephone tapping and in doing so disregarding thebasic requirements of foreseeability and accessibility (see the criticisms expressed in Recommendation 2/99 onrespect for privacy in the context of the interception of telecommunications adopted on 3 May 1999 by the Article29 working party on the protection of personal data, DG XV at the Commission, 5005/99/final, WP 18).40 Committee on Civil Liberties and Internal Affairs, report of 23 April 1999 by Mr G. Schmid on the draft Councilresolution on the lawful interception of telecommunications in relation to the new technologies,PE 229. 986/fin. P. 7.41 The draft convention is available on ‘http://conventions.coe.int/treaty/EN/projets/cybercrime.htm’.42 Legislative resolution of 17 February 2000, A5-0019/2000 and the report by Mr Di Pietro of 31 January 2000 onthis draft act for the Committee on Citizens Freedoms and Rights, Justice and Home Affairs, PE 232.057/fin, pp. 38and 50-51.43 OJ. L 281, 23 November 1995, p. 11. The differences between the Union and the USA which opposes this rulehave been the focus of hard-fought negotiations (see opinions 3/2000 of 16 March 2000 and 4/2000 of 16 May 2000on the level of protection provided by the safe harbour principles given by the Article 29 working party on dataprotection, 5019/00/EN/final, WP 31 and CA07/434/00/EN, WP 32). See also the draft additional protocol toCouncil of Europe Convention No 108 on the protection of individuals relating to data banks, published on 8 June2000 ‘http://www.coe.fr/data protection/Treaties/project%20de%20 protocol%20F.htm’.

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European Union44. Echelon may therefore entail a clear violation of territorial sovereignty to thedirect detriment of persons residing on the territory of non-Echelon states and in particular thosewhich, like Belgium, prohibit administrative telephone tapping45. Article 53 of the EuropeanHuman Rights Convention gives precedence to domestic law over the Convention if it givesgreater protection of the rights it underpins. This is the case here as the Strasbourg Court in somecircumstances, which are not present in the Echelon case, authorises judicial and administrativeinterception.

4. Echelon in conflict with the European Human Rights Convention

(a) How it contravenes the Convention

1. Protection under Article 8 of the Convention against telephone tapping andits modern variants46

At an early stage, a dynamic interpretation of individual terms in the Convention by the bodiesapplying it allowed telephone tapping to be classified as interference with the exercise of theright to private life and correspondence guaranteed by Article 8 although not explicitlymentioned in it47. The scope of 'private life' is a broad one and may not be restrictivelyinterpreted as 'the respect for private life encompasses the right of the individual to initiate anddevelop relations with others'48.

It is noteworthy that many European instruments expressly refer to Article 8 of the EuropeanHuman Rights Convention in order to indicate to States how to regulate telecommunicationspursuant to that provision49. The explanatory memorandum to Recommendation No (95) 4 on the

44 This is echoed in the opinion of 31 May 1999 of the Belgian Council of State on the draft law relating tocomputer crime, Doc. Parl. Chamber. so. 1999-2000, 50 0213/001 and 50 0214/001, pp. 45-47 and point 17 of theannex to recommendation R (95)13 of 11 September 1995 of the Council of Ministers of the Council of Europe onthe criminal procedure problems related to information technology.45 Neither the law of 21 March 1991 on certain public enterprises (Article 109b D in the title relating totelecommunications) nor the law of 30 June 1994 on the protection of privacy against the tapping, cognisance andrecording of private communications and telecommunications (Articles 219a and 314a of the Penal code, Articles90b et seq. of the Criminal investigation code) or the organic law of 30 November 1998 on the intelligence andsecurity services (Article 259a (4) of the Penal code: military interceptions abroad) authorised telephone tapping byany administrative authority going beyond purely technical aspects. The Lieutenant General heading the generalintelligence service of the Belgian Army also rightly claimed before the R Committee that Echelon would beunlawful in Belgian (De Morgen, 12.5.2000).46 The issue of telephone tapping and electronic interception is also dealt with in Article 13 of the Convention whichrecognises the right to an effective remedy, which may also be regarded as being flouted in several respects. See thefull article to appear in the RBDI.47 Klass v Germany judgment of 4 July 1978, § 41.48 See the Amann v. Switzerland judgment of 16 February 2000, § 65. Moreover, 'there is no reason in principle whythis understanding of the notion of "private life" should be taken to exclude activities of a professional and businessnature'.49 This is true of all instruments whether they take the form of conventions or resolutions of the Council of Europeconcerning privacy since Convention No 101 of 28 January 1981 for the protection of individuals in respect of theautomatic processing of personal data (http:/222.coe.fr/dataprotection/fdocs.htm). See also in Community law interalia Directive 97/66/EEC (OJ L 24, 30.1.1998). A broad interpretation of the right to respect full privacy has alsobeen put forward by the UN Human Rights Committee in respect of Article 17 of the International Convention onCivil and Political Rights (The right to the protection of the law against arbitrary or unlawful interference withprivacy, family, home or correspondence or to unlawful attacks on honour and reputation (Article 17), General

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protection of personal data in the area of telecommunication services, with particular reference totelephone services adopted by the Committee of Ministers on 7 February 1995 was veryrevealing, stating that the protection established in this provision also extended to the guaranteeof the secrecy of correspondence. For the European Court of Human Rights this guarantee had toapply to telephone conversations as well as mail. The Court's wish to make the European HumanRights Convention technologically relevant therefore had to be regarded as authorisation forplacing the whole range of telecommunication services, allowing communication orcorrespondence between subscribers or users under the protection referred to in Article 8 of theEuropean Human Rights Convention50.

Any interference51 taken in isolation and in whatever medium used, therefore has to comply withArticle 8, in the knowledge that 'the existence …. of legislation and practices authorising andestablishing a system of secret communications surveillance is in itself interference'52. It matterslittle whether the recordings made are subsequently used53. Nor is the actual content of theintercepted communication particularly important54. Nor does it matter much whether theintercepted calls are to or from the home or business premises; Article 8 of the Conventionapplies to them all55 . The same applies whether tapping aimed at one individual is carried out ona line belonging to a third party56.

The judgment in the Klass case set out the conditions for compatibility with Article 8 withparticular vehemence, 'the cardinal issue arising under Article 8 in the present case is whetherthe interference so found is justified by the terms of paragraph 2 of the Article (Art. 8-2). Thisparagraph, since it provides for an exception to a right guaranteed by the Convention, is to benarrowly interpreted. Powers of secret surveillance of civilians, characterising as they do thepolice state, are tolerable under the Convention only insofar as strictly necessary forsafeguarding the democratic institutions'57. These principles govern both judicial andadministrative interception although there are certain individual features inherent in the latter58.All these principles are also applicable to the memory storage of data relating to privacy59, butalso to other methods of investigation such as the taking of fingerprints, personal searches,asking questions about a person's private life, the taking of photographs or the keeping of recordsof interviews60. Thus if all aspects of Echelon, from the initial interception down to the last detail Observation No 16 of 8 April 1984, §8, which may be consulted on the UN High Commissariat for Human Rightssite at the following address: 'http://www.unchr.ch/tbs/doc.nsf').50 Explanatory memorandum to recommendation No R (95) 4 of the Committee of Ministers of the Council ofEurope, § 29.51 By definition interference implies a constraint on the right to privacy: see Coussirat-Coustere 'Article 8(2)' in LaConvention européenne des droits de l'homme – Commentaire article part article, 2nd edition, Paris, Economica,1999, pp. 330.331.52 One single telephone tap is enough to constitute interference as the Court ruled in its judgment Malone v. UK, 27June 1984, §64.s53 Kopp v. Switzerland, Judgment 25 March 1998, §53.54 Report of the European Human Rights Commission of 2 September 1992 quoted by P. Wachsmann, 'Les écoutestéléphoniques' under Judgment A v. France, 23 November 1993, RTDH 1994, pp. 582-583.55 Halford v UK, Judgment 25 June 1997, § 44; judgment in Kopp v. Switzerland, 25 March 1998, § 50.56 Lambert v. France, Judgment 24 August 1998, § 21.57 Klass Judgment, § 42. Our emphasis.58 G. Cohen-Jonathan, 'Les écoutes téléphoniques' in Mélanges G.J. Wiarda, Karl Heymans Verlag, Cologne, 1988,p. 100.59 Leander v. Sweden, Judgment 26 March 1987, § 48; judgment in Amann v. Switzerland, 16 February 2000, § 65.60 Commission report of 19 May 1994, App. No. 15225/89, Friedl v. Austria,'http:/www.dhcour.coe.fr/Hudoc1doc/herep/sift/305.txt', §§ 49 and 52.

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of data processing are liable to analysed in the light of Article 8, a provision which is beingcomplied with only if any interference (and there is interference in the slightest capture of anymessage whatever even if there is no subsequent processing) respects three cumulativeconditions: lawfulness, legitimacy and necessity in a democratic society61.

According to the case law established by the Strasbourg Court since the Sunday Times judgment,the statement in Article 8 that interference with the right to privacy has to be 'in accordance withthe law' means that the lawfulness requirement is complied with if domestic law, when it allowstelephone tapping or the retention of personal data, is sufficiently accessible on the one hand andsufficiently foreseeable on the other62.

However, even before considering whether the laws of the States taking part in Echelon are ofsuch a nature we have to ascertain that such laws do indeed exist. It is no easy matter to decidewhat law is applicable to Echelon (US law? On its own or in conjunction with UK law? The lawsof all the countries participating?). Too often we forget, as it all seems so pre-ordained, thatinterference in a guaranteed right, to be 'in accordance with the law' for the purposes of theConvention, has to have a domestic legal basis (which is not always the case with English law)63,on the one hand, and comply with the provisions laid down by domestic law, on the other64. It istrue that international law, even when it is as complex and technical as that relating totelecommunications, may have the status of 'law' if it is sufficiently accessible, clear andprecise65. But can the secret UKUSA agreement, of which we do not know whether it regulatesinterception nor if it designates which legislation applies, nor how it treats the rights of non-founder countries which simply host an interception site on their territory, really be regarded as a'law'?

If indeed there is a 'law' governing Echelon, this law would still have to be sufficientlyaccessible. The Khan judgment of 12 May 2000, the third to go against the UK on the questionof tapping, is also a first in the Strasbourg case law as it was the lack of accessibility of theEnglish law applying to police telephone tapping of a supposed drug dealer which resulted in abreach of Article 8. The circulars which were followed could in fact only be consulted in theHouse of Commons Library66, in which the UK Government said on 5 June 2000 in reply to aparliamentary question the secret agreements with the US governing the administration of theMenwith Hill base are not lodged either. Bearing in mind that section 309 of the Intelligence was

61 The legitimacy requirement is not examined here (see the article to appear in RBDI).62 Sunday Times v. UK judgment of 26 April 1979, para. 49.63 Sunday Times v. UK judgment of 26 April 1979, para. 47. The judgments in A v. France of 23 November 1993,para. 38, and Halford v. UK of 25 June 1997, para. 50, both went against the respondent States because of theabsence of any domestic legal basis and, hence, of any 'law' governing the telephone tapping contested in thesecases.64 Judgment in Barthold v. Germany of 25 March 1985, para. 48. While consideration of conformity with domesticlaw is quite exceptional in Strasbourg case law, as the Court declines to stand in for the national authorities in thisrespect, it has however just been done in the judgment in Dulaurans v. France Case of 21 March 2000 on thegrounds of a clear error of assessment by the French 'Cour de cassation' which had rejected an appeal. In this respectwe should note that the Regulation of Investigatory Powers Act adopted on 25 July by the UK Parliament in clause2.4. confines the scope for telephone tapping to conversations from, to, or within British territory. Otherwise therewould be a breach of the 'R.I.P.'.65 Judgment in Groppera Radio AG and others v. Switzerland, 28 March 1990, para. 68.66 In particular because the Home Office circulars could be consulted only in the House of Commons Library: para.27 of the Khan judgment of 12 May 2000. The judgment of the third section will become final only after expiry ofthe three-month time limit for appeals to the Grand Chamber of the Court.

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conducting Authorisation Act for Fiscal Year 2000 of the US Congress sought to know the legalbasis on which the NSA electronic interceptions, one might well ask what accessibility there is tolegal acts of which even the parliaments of the main parties to Echelon are kept ignorant.

Moreover, even if we assume there is an applicable law and that it is sufficiently accessible, wemay also doubt its foreseeability. The Leander v. Sweden judgment of 26 March 1987 illustrateshow the Court assesses the nature of the 'law' n the event of secret interference with privacy:'However, the requirement of foreseeability in the special context of secret controls of staff insectors affecting national security cannot be the same as in many other fields. (…) Nevertheless,in a system applicable to citizens generally, (…) the law has to be sufficiently clear in its terms togive them an adequate indication as to the circumstances in which and the conditions on whichthe public authorities are empowered to resort to this kind of secret and potentially dangerousinterference with private life. In assessing whether the criterion for foreseeability is satisfied,account may be taken also of instructions or administrative practices which do not have thestatus of substantive law, insofar as those concerned are made sufficiently aware of theircontents'67.

The foreseeability of a law, which is an essential criterion for the lawfulness of interference inprivacy, has been missing in several telephone tapping cases the Court has had to consider. Ithappened in the Malone v. UK Case as the Court could not say 'with any reasonable certaintywhat elements of the powers to intercept are incorporated in legal rules and what elementsremain within the discretion of the executive'68. And, on the heels of the judgments againstFrance in the Huvig and Kruslin Cases in 199069, the Valenzuela Contreras v. Spain judgment of30 July 1998 established as general principles governing telephone tapping the safeguards a 'law'governing tapping had to offer to be 'foreseeable' and thus to comply with Article 8: thedefinition of the categories of people liable to have their telephones tapped; the nature of theoffences which give rise to such an order; a limit on the duration of telephone tapping; theprocedure for drawing up the summary reports containing intercepted conversations; theprecautions to be taken in order to communicate the recordings for inspection by the judge anddefence; the circumstances in which recordings may or must be erased, etc.70.

In the Amann v. Switzerland Case, tried on 16 February 2000, the contested tapping and creationof a card relating thereto took place in 1981 but were not known to the applicant until 1990,when the public learned of the existence of an index containing the outcome of requests forinformation and the applicant was able to consult his card. The Court considered that the SwissCode of Criminal Procedure was not foreseeable enough as 'the primary object of the (…) Act isthe surveillance of persons suspected or accused of a crime or a major offence (…) or even thirdparties presumed to be receiving information from or sending it to such persons (…), but the Actdoes not regulate in detail the case of persons monitored "fortuitously" as "necessaryparticipants" in a telephone conversation recorded by the authorities pursuant to those

67 Leander judgment, 26 March 1987, para. 51.68 Judgment, Malone v. UK, 27 June 1984, para. 79.69 Huvig and Kruslin judgments of 24 April 1990, paras. 32 and 33 respectively. See also the conclusion thatArticle 8 had been breached in the Kopp v. Switzerland Case of 25 March 1998, paras. 73-74.70 Valenzuela Contreras v. Spain judgment, 30 July 1998, paras. 46 and 59: even if improvements to domestic law interms of legislation or case law had occurred between the disputed interception and the judgment of the Court, abreach of Article 8 of the Convention had occurred in view of the lack of foreseeability of the Spanish law.

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provisions. In particular, the Act does not specify the precautions which should be taken withregard to those persons'71.

The Rotaru v Romania judgment of 4 May 2000, in a case where intelligence services recordedpolitical activities, the Court maintained these strict requirements: ‘In order for systems of secretsurveillance to be compatible with Article 8 of the Convention, they must contain safeguardsestablished by law which apply to the supervision of the relevant services’ activities. Supervisionprocedures must follow the values of a democratic society as faithfully as possible, in particularthe rule of law, which is expressly referred to in the Preamble to the Convention. The rule of lawimplies, inter alia, that interference by the executive authorities with an individual’s rightsshould be subject to effective supervision, which should normally be carried out by the judiciary,at least in the last resort, since judicial control affords the best guarantees of independence,impartiality and a proper procedure.’72

Does Echelon provide all the substantive and procedural safeguards required by the principle oflawfulness? We may have our doubts, especially as such a blatant breach of general internationallaw as arises from extraterritorial interception would be difficult to regard as compatible withthat principle.

3. Echelon’s violation of the principle of necessity in a democratic society

While a State's margin of appreciation of the necessity for interference in privacy, such astelephone tapping or the keeping of records, is broad where national security is involved,discretion does not mean arbitrary powers. The Buckley judgment in particular pointed out that‘whilst Article 8 contains no explicit procedural requirements, the decision-making processleading to measures of interference must be fair and such as to afford due respect to the interestssafeguarded to the individual by Article 8’73 . But the concept of necessity above all implies thatinterference in privacy must meet an imperative need of society and should in particular beproportionate to the legitimate goal being pursued. Thus some excessively general restrictions onthe right of prisoners to conduct correspondence have been held to be a breach of Article 874.

In the Klass case the Court began by noting the technical advances made in the means ofsurveillance and the development of terrorism and highly sophisticated forms of espionage. Thejudgment, which dealt with administrative telephone tapping, provided an opportunity forpointing out to States how they might use their margin for interpretation: ‘as concerns the fixingof the conditions under which the system of surveillance is to be operated, the Court points outthat the domestic legislature enjoys a certain discretion. It is certainly not for the Court tosubstitute for the assessment of the national authorities any other assessment of what might bethe best policy in this field (...). Nevertheless, the Court stresses that this does not mean that theContracting States enjoy an unlimited discretion to subject persons within their jurisdiction to 71 Amann v. Switzerland judgment, 16 February 2000, para. 61. The same conclusion is reached in respect of thecard which had not been destroyed when it 'had no further purpose' (paras. 75-80).72 Paragraph 59 of the Rotaru judgment of 4 May 2000.73 Buckley v UK judgment of 25 September 1996, para. 76. The procedural dimension of Article 8 of the Conventionis analysed in depth in the version of this article to appear in RBDI.74 Silver v UK judgment of 25 February 1983, para. 99. The same applies to the indiscriminate opening of abankrupt’s mail (Foxley v UK judgment of 20 June 2000, para. 43, especially as his lawyer’s letters had also beenopened). The same prohibition of the indiscriminate censure of prisoners’ mail was restated in respect of anassessment of lawfulness rather than necessity (Niedbala v Poland judgment of 4 July 2000, para. 81).

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secret surveillance. The Court, being aware of the danger such a law poses of undermining oreven destroying democracy on the ground of defending it, affirms that the Contracting Statesmay not, in the name of the struggle against espionage and terrorism, adopt whatever measuresthey deem appropriate.75

At this point we may consider the exploratory and general nature of a surveillance system suchas Echelon, as denounced in the resolution of 11 April 2000 of the European Parliament’sCommittee on Civil Liberties, as a plain breach of Article 8 of the Convention. In the Miailhecase, in which a breach of that provision in the course of customs searches and seizures wasestablished, the Court noted that ‘the seizures made (...) were wholesale and, above all,indiscriminate, to such an extent that the customs considered several thousand documents to beof no relevance to their inquiries and returned them to the applicants’76. In the Klass case, thefact that ‘so-called exploratory or general surveillance is not permitted by the contestedlegislation’ had some influence on the Court’s assessment of the conformity of the Germansystem of administrative tapping77. Moreover, the UN Human Rights Committee also insists thatinterference with the right to respect for private life and correspondence, whether it is a questionof administrative or judicial tapping, should take place only on a case-by-case basis78. Thewholesale and indiscriminate nature of the tapping and interception involved in the Echelonprogramme may thus turn out to be a breach of Article 8 of the Convention79. This will allowEchelon to be both analysed and contested.

(b) Conditions under which Echelon may be contested

1. Whether States party to the Convention may be brought to book forparticipation in Echelon

a. The vigilance requirements laid down in the Convention

The obligations States incur when acceding to the Convention do not only involve refrainingfrom infringing it80. The protection of guaranteed fundamental rights also in some circumstancesrequires the State to adopt, with a margin of appreciation in doing so, certain measures to ensurethe actual and specific respect of these rights: this is the theory of ‘positive obligations’81. Thepositive obligations' theory focuses on the applicability of fundamental rights in relationshipsbetween individuals. Only States may of course be brought before the European Court of HumanRights, but if a judgment is given involving behaviour of individuals that is a failure to fulfil an 75 Klass v Germany judgment of 4 July 1978, paras. 49 and 50. See also Leander v Sweden judgment of 26 March1987, para. 60.76 Miailhe v France No.1 judgment of 25 February 1993, para. 39.77 Klass v Germany judgment of 4 July 1978, para. 51.78 UNHRC general observation No 16 quoted above, paras. 4 and 8. To which add recommendation 2/99 of theArticle 29 Working Party.79 As G. COHEN-JONATHAN notes in ‘Les écoutes téléphoniques’, Mélange G.J. WIARDA, Cologne, KarlHeymanns Verlag. 1988, p. 101, surveillance cannot be exploratory or general. A person has to be suspected ofhaving committed an act liable to such investigation. Authorisation for tapping therefore has to be preciselyreasoned and may relate to only one inquiry at a time. This ‘system’ cannot therefore be used unless traditionalmethods of investigation are ineffective or have failed.80 Marckx v Belgium judgment of 13 June 1979, para. 31 was the first to mention positive obligations in so manywords.81 For a recent example see the Özgür Gündem v Turkey judgment of 16 March 2000, paras. 42-43. F. SUDRE, Lesobligations positives dans la jurisprudence européenne des droits de l’homme, RTDH 1995, pp. 363-384.

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obligation imputable to the State in question, involving its international responsibility and, whereappropriate, involving a judgment against it82.

International practice shows, while it cannot be held responsible for the behaviour of thirdinternational parties, including foreign intelligence services simply because their activities tookplace on its territory, 'the territorial State must nevertheless remain vigilant towards events on itsterritory83'. The Interamerican human Rights Court defined this obligation perfectly and itsfamous Velasquez judgement, 'Thus, in principle, any violation of rights recognised by theInteramerican Human Rights Convention carried out by an act of public authority or by personswho use their position of authority is imputable to the State. However, this does not define all thecircumstances in which a State is obligated to prevent, investigate and punish human rightsviolations, nor all the cases in which the State might be found responsible for an infringement ofthose rights. An illegal act which violates human rights and which is initially not directlyimputable to a State (for example, because it is the act of a private person or because the personresponsible has not been identified) can lead to international responsibility of the State, notbecause of the act itself, but because of the lack of due diligence to prevent the violation or torespond to it as required by the Convention.'84. The vigilance requirement therefore implies aduty both to prevent the violation and to take effective action against its perpetrators85. TheEuropean Court applied similar principles in respect of serious infringements such as breaches ofArticle 3 of the Convention prohibiting torture or the destruction of dwellings in contravention ofthe right to respect for the home and the right of property. Even if the complaint is sufficientlydefensible, Article 13 of the Convention (right to an effective remedy before a national authority)requires thorough and effective investigation and access by the applicant to the investigation,prosecution and punishment of the perpetrators and, if appropriate, compensation86.

Of course a State may not be held responsible for everything that occurs on its territory if it hastaken all necessary precautions to avoid a breach of the Convention87. But, unless Germany andthe UK at least officially and publicly protest against the use of their territory by foreignintelligence services, or put an end to the use of their territory in contravention of the Conventionwhich has been violated by systematic policy of massive interceptions, these states would beviolating the Convention as much as general international law. Even if we admit that the duty ofdue diligence on the State is watered down in the 'sovereignty' area of international relations orin that of defence, the duty does not disappear, especially for States which have signed the

82 L. CONDORELLI ‘L`’imputation à L’Etat d’un fait internationalement illicite: solutions classiques et nouvellestendances’ RCADI, 1984, VI, p. 154, studies in detail this example of the applicability of the Human RightsConvention in relations between individuals and rightly concludes that what is involved here is the implementationof a traditional duty of vigilance, as the establishment of the international responsibility of the State does not in anyway depart from the rules the UN International Law Commission is seeking to codify; moreover, by acceding to anagreement to protect human rights a State may perfectly well be subscribing to rules imposing more onerousresponsibilities.83 J. SALMON and P. KLEIN, Responsabilité internationale, t. I, Presses Universitaires of Bruxelles, 1998-1999, p96.84 InterAmerican Human Rights Court, Velasquez v. Honduras judgment of 29 July 1988, §172, extracts in.R.G.D.I.P. 1990, p 467, preceded by commentaries by G. COHEN-JONATHAN.85 P. APRAXINE, 'Violation des droits de l'homme par une organisation internationale et responsabilité des Etats auregard of la Convention européenne', R.T.D.H. 1995, p 27.86 See judgments for 1998 concerning Article 13 by P. LAMBERT, 'the European Human Rights Court - 1998',J.T.D.E. 1999, p. 39-40, and the Selmouni v. France judgment of 28 July 1999, §79; Ihlan v. Turkey of 27 June 2000§97 and Salman v. Turkey 27 June 2000, §121;…87 Plattform 'Ärzte für das Leben' judgment of 21 June 1988, §34.

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Convention. When, as would appear to be the case with the Echelon programme, a State, from itsown territory, conducts telephone tapping by its secret services or allows other countries'services to do so, if it is aware of the fact and has not reacted, this can bring its internationalresponsibility into play. The same may apply when that state 'repatriates' the product ofinterceptions carried out by another State on its behalf, because in general international law thereis 'every State's obligation not to allow knowingly its territory to be used contrary to the rights ofothers'88.

The very nature of the obligations incurred by the States party to the European Human RightsConvention amplify this duty of vigilance89. These are objective obligations90 as confirmed inthe European Commission for Human rights' famous decision in Austria v. Italy91. It is thestructure which gathers together these objective obligations and the system of collectiveguarantees which protects them which make the Convention 'a constitutional instrument ofEuropean public order (ordre public)' in the strong words contained in 1995 in the Loizidou v.Turkey judgment92. This also explains the primacy of the Convention over any other domestic orinternational norms.

b. The primacy of the Convention over other international acts of the Statesparty to it

The former European Human Rights Commission and the Court had several opportunities toconsider the compatibility with the Convention of international or cross-border acts of States93.They did not hesitate to charge States parties to the Convention with infringement in casesarising from relationships between individuals and in disputes arising from the way in which aState conducted its international relations. If the failure to fulfil a duty of vigilance falls withinthe traditional territorial responsibility, an extension of jurisdiction (within the meaning ofArticle l of the Convention) beyond national territory may also spring from an equally traditionaltheory: 'the term "jurisdiction" is not limited to the national territory of the High ContractingParties: their responsibility can be involved because of acts of their authorities producing effectsoutside their own territory'94. Intercepting a conversation in Belgium from the Menwith HillAnglo-US base involves the responsibility of the UK in respect of the Convention, and the factthat the US is not a party does not in any way lessen the former's obligations.

88 ICJ, Corfu Channel case, 1949, p 18.89 See communication by G. COHEN-JONATHAN on 'responsibility for breaches of human rights in laresponsabilité dans le système international, Le Mans, Symposium of the Société Française du Droit International,Paris, Pedone, 1991, p. 101-135.90 J.F. FLAUSS, 'the protection of human rights and the sources of international law' in. 'La protection des droits del'homme et l'évolution du droit international, Strasbourg Symposium of S.F.D.I., Paris, Pedone, 1998,p. 24-28.91 European Human Rights Commission decision of 11 January 1961, App. No. 788/60, Austria v. Italy, p 141.92 Loizidou v. Turkey judgment of 23 March 1995 on preliminary objections, §75.93 See in particular H. DIPLA, la responsabilité de l'Etat pour violation des les droits de l'homme – Problèmesd'imputation, Paris, Pedone, 1994.94 Drozd and Janousek v. Spain and France Judgment of 26 June 1992, §91; judgment on preliminary objections inthe Loizidou v. Turkey case of 23 March 1995, §62.

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In fact the imputability to a contracting party to the Convention of a failure to comply with itmay result from either an ‘export’ violation starting from its territory (for example in extraditioncases where an individual on the territory of one party might be liable to the death penalty ortorture in the applicant country95) or a violation ‘imported’ into that State’s territory (for examplewhere the court on the spot has to apply a foreign rule in private international law or a criminalconviction delivered abroad96). As Pierre Apraxine summed it up so well, 'in the event offlagrant and obvious violations already committed or genuine risks of violations, supported byserious grounds for believing in its existence, the Court shall lay down that States must refrainfrom providing assistance either by allowing the performance of the contested act or byexecuting it via their own legal system' 97. The conditions for an obvious, flagrant and wholesaleviolation of the Convention would seem to be abundantly present if we consider the philosophyof the Echelon programme which is said to be able to intercept most continentalcommunications, under inaccessible and vague rules which persons not residing on the territoryof the participating countries have no means of contesting.

More fundamentally, the transnational dimension of a violation of Article 8 of the Conventionmay be the result of the way in which a State conducts its international relations on its territorywhen the contested act relates to the State's own actions in its relations with an internationalorganisation or a third state98. The Matthews v. UK judgment of 18 February 1999 concerningthe failure to organise European Parliament elections on the territory of Gibraltar did not hesitateto voice the primacy the Court gives to the Convention even where a State is a party to otherinternational treaties: ‘Para 29 - �Article 1] makes no distinction as to the type of rule ormeasure concerned, and does not exclude any part of the member States' ‘jurisdiction’ fromscrutiny under the Convention (see the United Communist Party of Turkey and Others v. Turkeyjudgment of 30 January 1998) . Para 32. Acts of the EC as such cannot be challenged before theCourt because the EC is not a Contracting Party. The Convention does not exclude the transferof competences to international organisations provided that Convention rights continue to be‘secured’. Member States responsibility therefore continues even after such a transfer. Para 33(…) The United Kingdom, together with all the other parties to the Maastricht Treaty, isresponsible ratione materiae under Article 1 of the Convention and, in particular, under Article3 of the Protocol No. 1, for the consequences of that Treaty.” 99

The Convention therefore applies even in cases where it is a question of assessing theconformity with it of the acts of a Contracting Party State, even by treaty or agreement, in theframework of its relations with other subjects of international law. This is because the State isstill responsible for its own acts and omissions in respect of the European Human RightsConvention which by virtue of Article 53 thereof takes precedence over its other international

95 For example, the Soering v. UK judgement of 7 July 1989, para 91, or Chahal v UK of 15 November 1996judgement, para 94. and lastly the Jabari v. Turkey judgment of 11 July 2000, para 38.96 The Drozd and Janousek judgment (para. 110) does however reserve this hypothesis for cases of flagrant denial ofjustice; P. Courbe, Private international law and the problems of incorporating the Convention in to the Frenchsystem in P. Tavernier (dir.). Quelle Europe pour les droits de l’homme? Brussels, Bruylant, 1996, pp 249-267.97 P. Apraxine, op. Cit. P. 27-28.98 See P. Klein, the responsibility of international organisations in internal legal systems and international law,Brussels, Bruylant, 1998, p. 470-480. Even though the UK/USA does not seem to have set up an internationalorganisation whose personality could not in any case be challenged by third parties, the State is still responsible forits own acts even if they were in relation to an act by such an organisation.99 See, on the same day, the Beer and Regan v. Germany and Waite and Kennedy v. Germany judgments onimmunity from the jurisdiction of the courts of the European Space Agency on German territory.

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commitments if they are less protective of the rights and freedoms it guarantees100. TheConvention by virtue of its special nature, ranks above its Party States' other internationalcommitments even where they were entered into with other States101.

In the case of the United Kingdom which would appear not to have confined itself to acting ashost for a listening station (like Germany) but has taken an active part in tapping andinterception, its international responsibility is involved not only for having allowed actsequivalent to violations to be perpetrated from its territory by non-Party States; it is said itself tobe directly violating the Convention by using its own services acting within the Echelonprogramme to tap and intercept communications throughout Europe.

2. Admissibility of action against Echelon

a. The status of potential victim in the event of secret infringement of the rightto respect for private life.

The risk of violation of the rights to respect for private life and correspondence which we all runby using public or private telecommunication services is difficult to foresee. Individuals wishingto apply to the European Court of Human Rights have to prove that they have been the victims ofa violation of the Convention within the meaning of Article 34 thereof. The prohibition of actiopopularis in European legal systems would also appear to rule out the admissibility ofapplications made by associations seeking to defend collective interests.102. Legal persons mayhowever lodge applications if they can prove they are victims of a breach of Article 8, whichimplies that the guaranteed rights are compatible with the nature of such persons103.

The Court declines to assess in abstracto the conformity of a law or internal practice with theConvention. The Klass judgment did however apply the concept of a potential victim in respectof secret surveillance measures such as phone tapping: 'In principle, it does not suffice for anindividual applicant to claim that the mere existence of a law violates his rights under theConvention; it is necessary that the law should have been applied to his detriment. Nevertheless,(...) a law may by itself violate the rights of an individual if the individual is directly affected bythe law in the absence of any specific measure of implementation' 104. The Court goes on toconsider that the secrecy of the measures objected to should not stand in the way of theeffectiveness of the Convention which 'implies in such circumstances some possibility of havingaccess to the Commission (...). The Court therefore accepts that an individual may, under 100 V. Coussirat-Coustere, ‘European Human Rights Convention and domestic law: primacy and direct effect’ in LaConvention européene de droits de l’homne, Brussels, Nemesis, 1992, pp. 18-19.101 See in particular the basic study by G. Cohen-Jonathan, ‘relationships between the European Human Conventionand the other treaties concluded by Contracting Party States in Essays in honour of H.G. Schermers, III, p. 79-111.102 European Commission of Human Rights inadmissibility decision of 16 April 1991 App. No. 1504/89 Purcelland others v. Ireland, DR 70, p. 262. On the same topic L.E. Pettiti and O. De Schutter, ‘The role of associations inthe framework of the European and Human Rights Convention’, J.T.D.E. 1996, p. 145-150.103 European Human Rights Commission, inadmissibility decision of 14 January 1998, App. No. 32200/96 and32201/96, Herbecq and association ‘League des droits de l’homme’ v. Belgium, ECHR vol. 41, 1998, p. 63. Refusedto recognise as a victim an association which on the basis of Article 8 contested the absence of legislation ofsurveillance systems in public places on the grounds that a legal person cannot be filmed and cannot therefore be avictim of the use of cameras. The case of telephone tapping should be different especially when it results in theelectronic storage of data on undertakings’ commercial policies, in particular if a company loses a market because arival had been informed of its intentions by intelligence services.104 Klass v. Germany judgment of 4 July 1978, § 33.

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certain conditions, claim to be the victim of a violation occasioned by the mere existence ofsecret measures or of legislation permitting secret measures, without having to allege that suchmeasures were applied to him'105. Even more specifically, 'any of the permitted surveillancemeasures, once applied to a given individual, would result in an interference by a publicauthority with the exercise of that individual's right to respect for his private and family life andhis correspondence. Furthermore, in the mere existence of the legislation itself there is involved,for all those to whom the legislation could be applied, a menace of surveillance; this menacenecessarily strikes at freedom of communication between users of the postal andtelecommunications services and thereby constitutes an 'interference by a public authority' withthe exercise of the applicants' right to respect for private and family life and for correspondence'106.

Following on from this case law on the status of 'potential victim', which is not voluminous butdoes vigorously protect the individual 107, the Rotaru judgment, referring explicitly to the Klassjudgment, stated that 'a decision or measure favourable to the applicant is not in principlesufficient to deprive him of his status as a 'victim' unless the national authorities haveacknowledged, either expressly or in substance, and then afforded redress for, the breach of theConvention' 108. In May 2000 the Court was therefore still authorising individuals to claim thatstatus which, having been reaffirmed in a case of data recording by intelligence services, will beall the more important in contesting Echelon.

b. Echelon constitutes a body of administrative practices whose existencerequires the exhaustion of domestic remedies

The principle of the prior exhaustion of domestic remedies before any action may be broughtbefore the European Court of Human Rights is set out in Article 35(1) of the European HumanRights Convention. This general principle of international law seeks to allow the State toremedy alleged breaches 109; complaints based on violation of the Convention should at leasthave been raised in substance before the national courts in compliance with the formalrequirements and time-limits laid down in domestic law 110. This principle does involve anumber of limits or exceptions in the legal system appertaining to the Convention: if there is noadequate legal channel; if no adequate legal channels are open to the applicant; if there is nochance of success with existing remedies; if special circumstances make remedies impossible orpointless; if unlawful 'administrative practices' make the use of any remedy pointless111. We shallbe considering the latter hypothesis alone here. Actions within the framework of a global 105 Klass judgment, § 34. See also Malone v. UK of 27 June 1984, § 86, which allowed the applicant to claim to be avictim of metering of telephone calls, simply because the applicant was a member of a class of persons potentiallyliable to be directly affected by this practice, quite apart from any concrete measure of implementation taken againsthim. As regards the difficulties of proof see the Halford v. UK judgment of 25 June 1997, §§ 57 to 60.106 Klass v. Germany judgment of 4 July 1978, § 41.107 In respect of other applications: G. COHEN-JONATHAN, Aspects européens des droits fondamentaux, 2ndedition, Paris, Montchrestien, 1999, p. 28-29.108 Rotaru v. Romania judgment of 4 May 2000, § 35 and references to earlier cases.109 P. TAVERNIER, The scope of the supervisory body in L’interprétation de la Convention européenne des droitsde l’homme, Brussels, Nemesis et Bruylant, 1998, p. 184-187.110 Ahmet Sadik v. Greece judgment of 15 November 1996, § 30.111 E. PICARD, « Article 26 », in. LE. PETTITI, E. DECAUX and H. IMBERT, La Convention européenne desdroits de l’homme – Commentaire article par article, 2nd edition, Paris, Economica, 1999, p. 603-610. Also D. deBRUYN, ' Exhaustion of domestic remedies', in La procédure devant la nouvelle Cour européenne des droits del’homme après le Protocole n° 11, Bruxelles, Nemesis and Bruylant, 1999, p. 57-60.

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electronic surveillance programme such as Echelon are claimed to be a body of administrativepractices whose existence removes the need, before approaching the European Court of HumanRights, to exhaust any remedies established by the domestic law of the countries, which aremoreover contracting parties to the Convention, taking part in that programme 112.

The Ireland v. UK judgment had already established in connection with an inter-state applicationthat 'in principle, the rule does not apply where the applicant State complains of a practice assuch, with the aim of preventing its continuation or recurrence, but does not ask (...) the Courtto give a decision on each of the cases put forward as proof or illustrations of that practice » 113.This notion of administrative practices was extended to individual applications by the case lawof the old Commission 114. Nor does the Strasbourg Court see any objection to an individual orindividuals claiming that the existence of administrative practices or the like should relieve themof the need to exhaust domestic remedies. In the Akdivar and others v. Turkey case it ruled that'there is no obligation to have recourse to remedies which are inadequate or ineffective. Inaddition, according to the "generally recognised rules of international law" there may be specialcircumstances which absolve the applicant from the obligation to exhaust the domestic remediesat his disposal. The rule is also inapplicable where an administrative practice consisting of arepetition of acts incompatible with the Convention and official tolerance by the State authoritieshas been shown to exist, and is of such a nature as to make proceedings futile or ineffective' 115.The definition of an 'administrative practice' laid down in the Ireland v. UK case is unambiguous 'A practice incompatible with the Convention consists of an accumulation of identical oranalogous breaches which are sufficiently numerous and inter-connected to amount not merelyto isolated incidents or exceptions but to a pattern or system; a practice does of itself constitute aviolation separate from such breaches' 116.

Professor Picard has summed up the conditions for it to exist 117. The first is the gravity of theviolation of the Convention by the contested acts, that gravity to depend on both the flagrancy ofthe violation and the importance of the rights violated. In the light of the European Court ofHuman Rights' consistency and rigour in its case law, treating secret surveillance of the citizensas a characteristic of a police state, the importance of the rights that have been violated cannot bein doubt. The outrage at the existence of Echelon felt in national parliamentary circles in Europeand the US and the European Parliament is also indicative of the flagrancy of the violations. Thesecond condition for the existence of an administrative practice is the repetition of the violations.As we have seen, the Court feels that any interception is an interference in itself which can onlybe sanctioned if each instance of the interception of individuals' communications takenseparately meets the three cumulative requirements of lawfulness, legitimacy and necessity; theEchelon programme seems to be a pattern or a system itself. The third and final condition is 'thetolerance of these facts by the respondent state, this itself being a result of the absence of anysignificant response by the national authorities in a serious attempt to put an end to it; (...) it 112 For amplification see the Article to appear in R.B.D.I., especially as regards the judgment of 1 July 1999 by theInternational Court of the Law of the Sea in the Saïga case which considered that where a State had exercised its'jurisdiction' (in this case arrest outside territorial waters) in breach of international law, there was no need toexhaust the remedies provided by the law of that country.113 Ireland v. UK judgment of 18 January 1978, § 159.114 K. BOYLE and H. HANNUM, « Individual applications under the European convention on Human rights andthe concept of administrative practice : the Donnelly case », A.J.I.L. 1974, pp 440-453.115 Akdivar and others v. Turkey judgment of 16 September 1996, § 88 and § 67.116 Ireland v. UK judgment of 18 January 1978, § 159.117 E. PICARD, « Article 26 », op.cit., p 809.

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would appear that the very existence of these practices, once they are sufficiently widespread,may lead to an assumption of tolerance, governments not being entitled to plead eitherignorance of the activities nor their inability to put a stop to them'. The various denials arehardly convincing now 118.

* * * * *

'Powers of secret surveillance of citizens, characterising as they do the police State, aretolerable under the Convention only in so far as strictly necessary for safeguarding thedemocratic institutions' 119. That is the view the European Court of Human Rights has taken oftelephone tapping since 1978. The 'international' character of such interception does not changeanything or, as Professor Sudre put it so well, 'European public order could not tolerate asituation in which these values might be ignored on the territory of a contracting party State onthe grounds that doing so was the result of a foreign judgment or act' 120. The Echeloninternational programme goes far beyond the need for the interception of telecommunications, ina democratic society, the strict conditions governing which have just been repeated again by theEuropean Court of Human Rights in 2000 in its Amann v. Switzerland, Rotaru v. Romania andKhan v. United Kingdom judgments, all three of which went against the respondent State. Whilethe Strasbourg case law, henceforth applied in the new context of Protocol No 11, occasionallyruns into turbulence, it is a field in which increasing protection on principle for the individual isa constant factor: protecting privacy against secret surveillance 121. This in singular contrast withthe proliferation of public and private interference with the right to respect for private life ofwhich Echelon is only one example. But what an example …

118 The UK Prime Minister simply stated that 'the United Kingdom had not betrayed its European partners by itsclose collaboration with the United States ( La Libre Belgique 24.2.2000 and Le Monde 25.2.2000).119 Klass v. Germany judgment op. cit., § 42 and lastly, the Rotaru judgment (§ 47).120 F. SUDRE, « Existe-t-il un ordre public européen ?», in P. TAVERNIER (dir.), Quelle Europe pour les droits del’homme, Bruxelles, Bruylant, 1996, p 79.121 For some time judgments have clearly tended to increase the duties on States (in particular by a very protectiveinterpretation of the right to effective remedy provided by Article 13 of the Convention) and to relax the proceduralrequirements for applicants contesting systematic violations of the Convention: J. F. FLAUSS, 'La Cour deStrasbourg face aux violations systématiques des droits de l’homme', in Mélanges P. LAMBERT, Brussels, Bruylant,2000, pp 348-353.

Addendum: 1

New .eu Domain

Changed Web and E-Mail AddressesThe introduction of the .eu domain also required the web and e-mail addresses of the European institutions to be adapted. Below please find alist of addresses found in the document at hand which have been changed after the document was created. The list shows the old and newlist of addresses found in the document at hand which have been changed after the document was created. The list shows the old and newaddress, a reference to the page where the address was found and the type of address: http: and https: for web addresses, mailto: for e-mailaddress, a reference to the page where the address was found and the type of address: http: and https: for web addresses, mailto: for e-mailaddresses etc.addresses etc.

Page: 6Type: http:

Old: http://www.europarl.eu.int/dg2/hearigs/20000222/libe/fr/default.htm.New: http://www.europarl.europa.eu/dg2/hearigs/20000222/libe/fr/default.htm.