Tapping the German Chancellor’s Cell Phone and Public International Law

Professor Dr Stefan Talmon is Professor of Public Law, Public International Law and European Union Law at the University of Bonn and Director at the Institute of Public International Law of the University of Bonn.

Ultimately, there is no denying that surveillance culture has come a long way over the past few years. For example, it is now possible for both home and business owners to make use of Verisure Smart Alarms to protect their properties. These high-quality and industry-standard security systems can be accessed remotely for total peace of mind that your property and your belongings are safe when you cannot be physically present. Moreover, nowadays, security cameras come in a wide variety of discreet options that can record surveillance footage that can later be used as evidence in court. But what does this rise in surveillance culture mean for law and public figures?

I. Tapping as espionage in times of peace

The tapping of Chancellor Merkel’s cell phone by the American secret service NSA has led to a significant political debate. As a matter of public international law, the matter is, however, rather less controversial. The tapping of the Chancellor constitutes espionage in times of peace and, as such, does not generally violate public international law. Unlike espionage in times of war, public international law does not contain any specific rules with respect to espionage in times of peace. Consequently, espionage in times of peace is covered by the Lotus-Principle pursuant to which States, by virtue of being sovereign, are free to engage in any activities that are not expressly prohibited by international law. On the other hand, States that are spied upon are free, by virtue of their sovereignty, to criminalize the spying activities of individuals for foreign intelligence agencies, as done by Germany in its Criminal Code. However, this does not mean that the foreign State commits an internationally wrongful act when engaging in espionage. As a consequence, Germany is neither entitled to an apology from the United States nor can it take any countermeasures. The European Parliament’s suggestion to suspend the 2010 SWIFT-Agreement between the US and the European Union, which grants US-agencies access to bank transfer data of suspected terrorists within the EU, in response to the US’ surveillance activities would thus be incompatible with public international law. An international legal prohibition of espionage can result only from international conventions or from customary international law. The UN General Assembly resolution on surveillance activities of foreign intelligence agencies as currently prepared by Germany and Brazil can thus only be of political or moral significance.

II. Doubtful ‘No Spy Agreements’

A so-called ‘No-Spy Agreement’ which obliges the contracting parties to refrain from surveillance activities directed against each other does not currently exist between the United States of America and the Federal Republic of Germany. The deputy spokesperson for the German government stated on 25October 2013, however, that the Federal Government expects ‘the US to conclude an agreement [with Germany] which regulates and governs the activities and cooperation of the intelligence agencies by the end of the year. This includes, inter alia, that we do not spy on each other.’ In this context reference is often made to the British-U.S. Communication Intelligence Agreement of 5 March 1946, which Australia, Canada and New Zealand later joined. These five States, also known as the ‘Five Eyes Alliance’, have reportedly agreed not to spy on each other. However, this agreement, which may be found on the NSA’s website, appears to be a political arrangement – a Gentlemen’s Agreement or a Memorandum of Understanding – between the intelligence agencies rather than an internationally binding agreement between the States concerned. A prohibition to spy on each other is not expressly mentioned. Instead the agreement focuses on the comprehensive exchange of intelligence data that probably makes espionage activities against each other redundant. So far the United States does not seem to have publicly concluded a binding ‘No-Spy Agreement’ with any other State. The same seems to be true for other States. This does not mean that it would be impossible to conclude such agreements as a matter of international law. It does, however, raise the question of whether espionage by States, as compared to the treatment of captured spies, can reasonably be regulated in so-called ‘No Spy Agreements’ given the national security interests of States. The prohibition of any surveillance activities in such an agreement would probably be subject to the provisos of ‘national interests’, the right to self-defence, state of emergency, necessity, substantial change of circumstances and other possible justifications for the violation of international agreements. In any case, it would be important to determine whether such an agreement with the United States would merely prohibit surveillance activities targeting the German government and German industry or whether it would cover all espionage activities in Germany. The latter seems to be unlikely, considering potential terrorist threats emanating from German territory. Many people in the United States will remember that some of the terrorists of September 11 studied in Hamburg. Against this background, the German Government should not have too high hopes for the conclusion of a legally binding ‘No Spy Agreement’. If anything, the Obama administration is likely to be prepared to conclude a political undertaking which normally gives States greater leeway when it comes to non-compliance. But even an official, formal political agreement with Germany seems rather unlikely. The United States could not enter into such an agreement without other partners and allies demanding the conclusion of similar agreements. In addition, even a legally non-binding agreement would increase the political price that subsequent US governments would have to pay for future espionage activities in Germany.

III. Surveillance activities from within the US embassy as a violation of diplomatic law

Assuming that the United States did not use spy satellites to tap the Chancellor’s cell phone, but instead listened in on conversations from within the US Embassy in Berlin, this would constitute a breach of the 1961 Vienna Convention on Diplomatic Relations. The Convention requires (art. 41(1), (3), VCDR) members of diplomatic missions ‘to respect the laws and regulations of the receiving State’ and that the premises of the mission are not used in any manner incompatible with the functions of the mission. Although the functions of a diplomatic mission include the gathering of intelligence on the receiving State, this may only be done by ‘lawful means’ (art. 3(1)d, VCDR). This does not cover spying on the government of the receiving state. If the German Government has evidence of eavesdropping from within the US Embassy, Germany will be able to bring a case against the United States before the International Court of Justice in The Hague for violating the Vienna Convention on Diplomatic Relations as both States are parties to the Convention’s Optional Protocol Concerning the Compulsory Settlement of Disputes. A criminal case in the German courts against embassy personnel for engaging in espionage will, however, regularly fail for reasons of diplomatic immunity (art. 29, 31, 39, VCDR). In this case, the only possible course of action for the German Government will be to declare the suspected spies personae non gratae (art. 9, VCDR) thereby terminating their activities at the Embassy. In addition, the German Government could ask the United States to reduce the number of its diplomatic and other personnel at the Berlin Embassy and prohibit the use of radio communication equipment at the Embassy (arts. 11, 27(1), VCDR).

IV. Tapping from within US military bases in Germany as a violation of the NATO Status of Forces Agreement

Eavesdropping on the Chancellor from US military bases in Germany violates Article II of the NATO Status of Forces Agreement. All differences between the parties relating to the interpretation or application of the Agreement are to be settled by negotiations between them without recourse to any outside jurisdiction (art. XVI, SFA). Unlike in the case of the Vienna Convention on Diplomatic Relations, there is thus no effective way to establish a violation of the Agreement.

V. Remote surveillance and public international law

It seems most likely that the Chancellor was tapped directly from the United States. Such behaviour without a physical link to Germany does not violate customary international law. In 2006 the European Court of Human Rights held (para 88) with respect to the strategic international surveillance of wireless telephone communications by the German Federal Intelligence Service (Bundesnachrichtendienst) that the monitoring of international wireless telecommunications, that is, telecommunications which are not effected via fixed telephone lines but, for example, via satellite or radio relay links, and the use of data thus obtained does not violate the territorial sovereignty of foreign States, as long as the radio signals emitted from foreign States are monitored by interception sites situated on German soil and the data collected are used in Germany. The NSA is doing exactly the same when it taps the Chancellor from locations within the United States. Remote surveillance also does not meet the requirements of an unlawful intervention in the internal affairs of the Federal Republic of Germany because it is lacking the element of unlawful coercion required by international law. With such possibilities, maybe the national and local government cyber security services need to be amped up.

VI. Remote surveillance as a violation of the United States’ human rights obligations

A violation of the United States’ international human rights obligations by tapping the Chancellor can also be ruled out. It is true that the Chancellor, in her capacity as a private person, does enjoy the protection of the 1966 International Covenant on Civil and Political Rights (art. 17, ICCPR) against arbitrary or unlawful interference with her privacy. However, States Parties to the Covenant are only obliged to respect and to ensure the rights recognized in the Covenant to all individuals within their territory and subject to their jurisdiction (art. 2(1), ICCPR). Even if one does not share the United States’ view that the rights guaranteed in the ICCPR are not capable of extra-territorial effect, it cannot be assumed that the German Chancellor is subject to the jurisdiction of the United States when she is residing in Germany. Moreover, the questions of arbitrariness and unlawfulness of the interference by the NSA with the right to privacy would have to be determined under US law (and not German law). Against this background, the joint German- Brazil initiative to further develop the ICCPR by means of a resolution of the United Nations General Assembly in order to protect the privacy of individuals against surveillance operations by intelligence agencies is unlikely to succeed. While it is true that the United States has been bound by the ICCPR since 1992, new obligations of the States Parties to the Covenant cannot be created by means of a General Assembly resolution. In addition, an extension of the meaning of the concept of ‘privacy’ alone will not be sufficient to overcome the limited territorial applicability of the ICCPR.

VII. International law and espionage

The tapping of cell phones – be it the phone of the Chancellor or that of an ordinary citizen – may be an unfriendly act and an act unbecoming among ‘friends’, but it is not illegal under international law. For anyone worried about the situation of phone tapping might find it useful to click here for the statistics on phone security, and how to go about making a cell phone safe and barred from any foreign interception. Any moves to create new international legal rules outlawing espionage in times of peace seem to be of questionable value considering the intelligence gathering activities of the Bundesnachrichtendienst abroad. In the end, the old saying still applies: You spy, I spy, we all spy!