No Secrets Allowed

Case No. 1
Brief Facts
 In the course on the war on terror the U.S. National Security Agency (NSA) has gone over
to, with the use of satellites, systematically collecting, storing on U.S. servers and
evaluating data from private citizens, officials and government institutions in friendly
foreign countries without concrete proof of a connection to terrorism. According to
media reports, Austria us one of the six states that are fully monitored by the NSA. This
means that all telephone conversations and all internet traffic in Austria is monitored by
the NSA, and not just in terms of broad communication data, but also in terms of specific
communication content. The data is stored for 30 days, giving the NSA the opportunity
to retrospectively analyse the recent conversations and written communication of
people of interest. Whistleblower Edward Snowden, a former NSA employee, made the
practise public in 2013.
 The Austrian Government is outraged claiming the actions of the United States are a
breach of international Law. The U.S argues that international espionage is both
common practise and that during the cold war, Austrian Military Intelligence and U.S.
intelligence services entered into a still valid secret treaty which regulated exchange of
classified information between the two countries. The Austrian Government does not
dispute the existence of the secret treaty, nor its own espionage practise.
Major Question

 Did the U.S violate international Law?

 Additional Information:
 There are no bilateral or multilateral treaties explicitly
prohibiting espionage activities of one state in
another state. The U.S has never signed a bilateral ‘no
spying agreement’ and furthermore friendship
treaties do not regularly contain ‘no spying clauses’.
 According to virtually all national penal codes,
treason and secret foreign espionage is subject to
punishment.
Relevant Legal Instruments

 The UN Charter
 Vienna Convention on the Law of the Treaties
(VCLT)
 ILC Draft Articles of State Responsibility
 UNGA Resolution, Declaration on the
Principles of International Law concerning
Friendly Relations and Cooperation among
states in the Charter of the United Nations,
from the 1970 (Friendly Relations Declaration)
Outline

 Violation of International Law against Austria

1)International Prohibitions
a) Direct Prohibition of Espionage
b) Indirect Prohibition of espionage: sovereign
equality and indirect intervention
2) Justifications
a) Consent by Austria
b) General Practise of Espionage
3) Procedural Impediment
4) Waiver or Forfeiture of a Right
1. VIOLATION OF INTERNATIONAL LAW
AGAINST AUSTRIA

I. International Prohibitions (DIRECT)

a) Treaties:
only possible through a treaty. There are no
bilateral or multilateral treaties prohibiting
espionage in peacetime.
b) Customs:
is there enough state practise prohibiting
espionage in peacetime?
Legal Assessment

 THE UNITED STATES MAY HAVE VIOLATED

INTERNATIONAL LAW BY HAVING USED
THE NSA TO SPY ON AUSTRIAN
COMMUNICATION DATA AND CONTENT.
Customary International Law

 Espionage is not permitted by states inside

their territory and is punishable act.
 HOWEVER states do get involve in spying on
foreign territories.

 There is a contradictory practise.

General Principles of International Law

 State courts and laws penalising spying make

a general principle of law?

 What about State courts and laws not

penalising their own spies?
Indirect Prohibitions

 Principle of Sovereign Equality and Unlawful

Intervention:
▪ UN Charter Article 2(1) … No State may exercise sovereign
power over another state without the latter’s consent (par
in parem non habet imperium).
 Friendly Relations Declarations UNGA:
 Equality of States in every mode…
 State shall not directly or indirectly interfere in the
“internal matters” of other states
Additional Information about
Espionage
 Espionage in Armed Conflicts
 Article 29 of the Hague regulations 1907 states that a
person can only be considered as a spy when, acting
clandestinely or on false pretences, he obtains or
endeavours to obtain information in the zone of operations
of a belligerent, with the intension of communicating it to
the hostile party. According to the laws of war (IHL) spies
are not afforded the status of prisoner of war, as such they
may be prosecuted against under domestic law for
espionage (Art 46(1) of Adtnl Protocol 1). However, there is
no specific prohibition on espionage.
Internal Affairs

 Matters falling under the exclusive domestic

jurisdiction of a state
 The subject matter must not be in exclusive
jurisdiction of international law e.g. Torture

 Is Surveillance of the entire communication

network and collecting data meddling in the
internal affairs of a state?
The Nicaragua Test (para. 205)

 Intervention is wrongful when it uses methods of

coercion in regard to such choices, which must
remain free ones. In ther words, the interference
in the internal matters must be forcible or
dictatorial to the effect that the coerced state is
derived of control over the matter.

 Does the surveillance amount to a Coercive

Measure?
The Reciprocity Principle

 Austria has also spied upon the U.S as well. The

traditional customary law is that a state is not
bound by a law which the other state has infringed.
Except for a few fundamental forms i.e. prohibition
on the use of force, human rights etc.)
 The principle is also accepted in the VCLT art. 60 in
form of the material breach by a party.
 The reciprocity principle also requires the conduct
to be equally severe to renounce its obligation.
 Was the conduct of the U.S equally severe?
The East Timor Case (para. 27)

 Seizure of documents and data being used against

Australia in an international proceedings.
 ICJ stressed that such incidents might infringe the
principle of sovereign equality.

 The recording of governmental communications

can have a significant impact upon the negotiating
powers of a state which is a constant feature of
state practise. So it may infringe the sovereign
equality of a state.
 It seems clear from the facts that the
different levels of the severity of the
interventions constitutes a prohibited
disregard of the Austria’s Sovereign Equality.
Justifications by the U.S

 1) Consent by US-Austrian Treaty:

 Articles on State Responsibility (Art. 20), a state
having a consent in the commission of the act
excludes the illegality of the act.
 Was the treaty registered under art. 102 of UN
Charter and Art. 80 of the VCLT?
 If no, what is the effect?
 What is the status of a secret treaty?
 However the treaty only allows exchange of
data not permitting surveillance

 2)
Can the collection of data be a part of
Countermeasures?
Questions Discussed
 What elements are required for the creation of customary
international law?
 What are general principles of law?
 Which international rule indirectly prohibits international
espionage and why?
 What is the meaning of the reciprocity principle and what rle
does it play when international espionage is at issue?
 From which principle is the prohibition to intervene derives?
 What does international law define as an internal affair and
when is intervention in internal affairs illegal?
 What conditions justify intervention into the internal affairs of
another state?