TEMPORARY COMMITTEE ON THE ECHELON INTERCEPTION SYSTEM

THE SECRETARIAT

COMMUNICATION TO MEMBERS

Members will find attached a document submitted by Mr Dimitri YERNAULT, Universit Libre
de Bruxelles:

ECHELON AND EUROPE

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ECHELON AND EUROPE1

Dimitri YERNAULT,
Research assistant
Centre de Droit public
Universit Libre de Bruxelles
Brussels, 13 September 2000
Journal des Tribunaux Droit Europen, October 2000
The new information technologies, in addition to the fantastic scope they offer for expansion in
the fields of the advancement of knowledge and trade, also represent a considerable threat to the
right to respect of privacy. This is true in the field of purely private relationships, simply taking
the example of the uncontrolled recording of individual consumption patterns. It is also true, as
witness the unmasking of the global electronic surveillance programme known as Echelon, of the
relationships between the individual and authority. In the case of Echelon there is the extra factor
that anybody (surveillance no longer being restricted to officials of hostile states or members of
allegedly terrorist groups) may be eavesdropped on by any means (any type of electronic
communication, pursuant to unknown rules) and anywhere (national sovereignty having become
a dead letter).
The European Union and its members are now living in the eye of the Campbell report2 and the
resulting political implications. This report reveals the existence of several telecommunications
surveillance systems, the most impressive of which appears to be the Echelon programme,
describes the electronic communications interception technologies used (satellite, all forms of
telephony, 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 given
information on the operations of their European rivals by receiving information intercepted by
Echelon.
However, Echelon also raises a new problem which is both crucial and neglected, affecting
modern human rights law: the demarcation of what Professor Emmanuel Decaux calls the
territory 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 Revue
Belge de Droit International entitled From fiction to reality: the Echelon global electronic interception programme
and the international responsibility of states in the light of the European Convention on Human Rights. Our thanks
to 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 of
Abuse 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 study
currently 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 or
common-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 technology
assessment issues, vol. 3/5; Chris ELLIOT, The legality of interception of electronic communications : A concise
survey of the principal legal issues and instruments under international, European and national law, vol. 4/5; Nikos
BOGOLIKOS, The perception of economic risks arising from the potential vulnerability of electronic commercial
media to interception, vol. 5/5.

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set of authorities more or less organised by more or less public international agreements will
make up a network of de facto directories whose operational powers will henceforth be
superimposed on traditional national territorial powers, giving rise to serious risks of legal
vacuums to the detriment of the security which should govern the protection of fundamental
rights3.
As the evidence, including various forgotten official sources, piles up (1.), the European
Parliament has set up a temporary committee which will probably play a crucial role in the future
of the campaign against Echelon (2.). We need to consider how resolutely the Commission will
establish Echelons breach of the principle of national sovereignty which entails the prohibition
of extraterritorial telephone tapping (3.). Breaches of this prohibition are moreover only one
aspect of the violations of the right to privacy guaranteed by Article 8 of the European
Convention for Human Rights. The secrecy of the rules governing Echelon constitute a violation
of the principle of lawfulness which should govern interference with privacy such as electronic
interception; its explanatory and general nature entails a violation of the principle of necessity in
a democratic society (4.a.). These breaches, imputable to states which are parties to the
convention (Germany, for passive participation confined to hosting an interception station and
the United Kingdom for active participation by its intelligence services), may properly be
contested before the European Court of Human Rights, as Echelon is alleged to constitute a body
of administrative practices whose existence obviates the use for individuals to exhaust the
remedies in the participating countries, which individuals may claim the status of potential
victims 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 through
millions of intercepted messages some speak of two million communications a minute or three
billion a day for pre-programmed key words in static or mobile telephone conversations, fax
and telex messages and electronic mail. This fantastically high-powered network is claimed to
feed electronic memories and data banks from a network of interception satellites covering the
entire globe. There are claimed to be relay and listening stations in seven countries: the UK and
Germany (Europe), Japan (Asia), Australia and New Zealand (Oceania), Canada and the United
States (America). The US National Security Agency (NSA) is at the heart of this global message
interception 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 network
which arose in the wake of the Second World War. The Dictionary (group of programmes to
sort intercepted messages) of the Echelon listening stations is said to contain key words named
not only by the intelligence agency of the country concerned but also by those of the other four
countries involved. The struggle against the Soviet bloc has thus gradually given way to a new
national security concept which now includes commercial and economic intelligence4.
3

Mlanges M.A. EISSEN, Brussels and Paris, Bruylant and LGDJ, 1995, p. 65.
It is sometimes alleged that countries other than those mentioned also belong to the network. Our attention is
focussed on Germany and the UK because of the number of corroborating pointers to their possible involvement and
because these two states are both members of the EU and parties to the European Human Rights Convention. There
follows 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 Intelligence
Authorisation Act for Fiscal Year 2000 approved by the US Congress in November 19995. This
required the US intelligence services, including the NSA, to indicate the legal basis on which
they were conducting electronic interception. The outcome of the hearings has not become
known and in any case section 309 related only to the protection of US citizens privacy. People
do, however, often forget to read this act in detail; it also includes a section 502 in its chapter
dealing with military intelligence agencies. This innocent-looking budgetary provision is entitled
Funding for Infrastructure and Quality of Life Improvements at Menwith Hill and Bad Aibling
Stations and confirms the existence of US electronic intelligence bases on the European
continent. The preparatory work for the National Defence Authorisation Act for Fiscal Year
2000 confirms that the Menwith Hill base is run by the NSA6. One of its acknowledged functions
is missile detection which, however, involves only two of the 25 radomes officially listed by the
UK Government7. The NSA base at Bad Aibling in Germany was at least used as a hub for US
and Nato forces communications during the Kosovo conflict8. While the US authorities are
apparently anxious to protect US citizens against electronic invasion of privacy, the Congress
made a strengthened NSA a strategic priority. The NSA has also supported the lodging of a
patent application by three of its officials to protect an intercepted message sorting procedure
which is highly reminiscent of Dictionary9
Official UK Parliament documents confirm not only that the Menwith Hill basis is operated by
the 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 the
Parliament library11. However, given that the Government Communications Headquarters (UK
electronic 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 of
the 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 many
others.
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 Menwith
Hill 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-C
of 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 Mr
BAKER, House of Commons sitting of 6 April 1998, col. 9); the site employs 415 US military and 989 US civilian
staff, 392 UK civilian staff; the number of Government Communications Headquarters staff was not revealed for
reasons 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 around
the world via one of the largest wide area networks on earth'12, it may reasonably be concluded
that 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 in
early 1999 by the head of the Australian electronic intelligence service (Defence Signals
Directorate),14 but the most explicit official source is still chapter 27 of the 1996 report by the
Canadian Auditor-General's report, which has amazingly also remained in the shadows. After a
description of how Canada conducts its Signals Intelligence (electronic intelligence) policy, we
read that 'Canada has close formal intelligence relationships with a number of countries. The
closest of these were forged during World War II and solidified during the Cold War. Links
remain particularly strong with the United States, the United Kingdom, Australia and New
Zealand. Intelligence products, including analyses and assessments, are exchanged, and
technical assistance is provided by each to other'15.
France, which also has its own foreign military communications interception system (using the
Helios 1 satellite)16, has nevertheless objected to being in its turn a possible target of US
electronics intelligence and therefore set up a parliamentary information mission in February
200017. The Paris Prosecutor's Office entrusted the DST with an investigation in early July
200018.
In Belgium, whose Ministry of Justice has called Echelon an attack on territorial sovereignty and
a threat to the right to privacy19, there have been a number of parliamentary debates, during
which its Foreign Minister stated that he would take the action required if Echelon were proved
to exist, a matter on which he did not conceal his concern20. These debates followed the approval
of the 1999 report of the Standing parliamentary supervisory Committee for the intelligence and
security services (the R Committee)21, and the work in progress at the European Parliament. On
12

http://gchq.gov.uk/textonly/about/technology.html
D. LANGE, preface to Nicky HAGER's book Secret Power. New Zealand's Role in the International Spy Network
published in 1996, http://www.fas.org/irp/eprint/sp/sp_f1.htm.
14
D. CAMPBELL, 'Australia first to admit "were a part of global surveillance system"', Telepolis 28.05.1999 (online 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'. This
collaboration was formally confirmed in the 1999-2000 report of the Commissioner for the Telecommunications
Security 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, No
1114, p. 53.
17
National Assembly, Defence Committee, 29 February 2000, Minutes No 27.
18
Libration of 5 July 2000 points out that the 'Direction de la Surveillance du Territoire' was to carry out the
inquiry, while the 'Direction Gnrale de la Scurit extrieure,' 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 Belgian
Chamber, 13 February 2000.
20
Record of the plenary sittings of the Senate, Thursday 17 February 2000, afternoon sitting; record of the
Committee 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 on
the intelligence and security services, 14 February 2000, Doc. parl. Chambre 50 430/001 and Senate 2-332/1, from
which it appears that the Belgian services, claiming that they do not have the resources required, have not carried
out any investigation of Echelon going beyond a superficial consultation of sources in the public domain. On 8 May
2000 the R Committee received a confidential report, which is still classified, in which it concluded that Echelon did
13

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8 May 2000 the R Committee received a further report which is still classified. Having taken the
Foreign Minister at his word, a socialist member proposed at the Senate sitting of 6 July 2000
that Belgium should bring proceedings before the European Court of Human Rights for a breach
of Article 8 of the ECHR on the grounds first that Germany can no longer be unaware that it is
making its territory available to the NSA to conduct interceptions of telephone calls to the
detriment of the European publics right to privacy on the one hand, and second that the United
Kingdom is not only acting as host for at least one NSA site but is also playing an active part in
the interception of telephone calls under the UKUSA Agreement. The Belgian Foreign Ministry
replied in essence that the drawbacks of initiating proceedings as a State before the Strasbourg
Court were outweighed any symbolic victory Belgium might achieve22. Between those favouring
and those opposing referral to the Strasbourg Court the President of the Senate proposed that the
debate should be held over until Parliament had reconvened, the Prime Minister, heard by the R
Committee subsequently having decided that debate would be premature pending the outcome of
the European Parliaments work23.
2.

Echelon and the European Parliament

The European Parliament has been trying to find out more about Echelon since an initial study
published on 6 January 1998 stated that within Europe, all e-mail, telephone and fax
communications are routinely intercepted by the United States National Security Agency,
transferring all target information from the European mainland via the strategic hub of London
then by Satellite to Fort Meade in Maryland via the crucial hub at Menwith Hill in the North
York Moors of the UK24. A resolution of 16 September 1998, quoting Echelon by name, then
expressed concern at electronic surveillance and its economic fallout in respect of transatlantic
relations25. The debate resumed in 1999 with the publication of five new reports commissioned
by the STOA panel and conspicuously resulted in the hearing of the journalist Duncan Campbell
on 22 February 2000 by the Committee on Legal Affairs and the Internal Market and the
Committee on Citizens' Freedoms and Rights, Justice and Home Affairs26.
In addition to the stir caused in the national parliaments, Echelon was raised during Parliaments
sitting of 30 March 2000. Commissioner Liikanen announced receipt of a letter from the US
Administration denying any economic espionage27 and a communication from the UK
Government claiming that UK law regulated electronic interception in detail and had been
approved 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) in
respect 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 the
European Court of Human Rights by saying that his country had better protection of privacy than anybody (La Libre
Belgique 8 July 2000).
24
Paragraph 2.4.1. of the first STOA report to have mentioned Echelon, An appraisal of the technologies of political
control, 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, in
particular of Echelon, required protective measures concerning economic information and effective encryption (OJ
12.10.1998, c. 313, p. 98).
26
See Parliaments 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 fighting
alleged corruption by European undertakings in seeking to win foreign markets (Reuters press release on
http://biz.yahoo.com/rf/000223/bnk.html). An in-depth investigation by the US NBC News network on 14 April
2000 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 complete
conformity with United Kingdom law, with United States law, and most importantly, is done with
complete respect and in complete conformity with, the European Convention on Human
Rights28. The Portuguese Minister of the Interior, whose country was providing the Presidency
of the Council during the first half of 2000, did, however, declare that there was no doubt about
the existence of a telecommunications interception system and that the question was about its
use29. The Justice and Home Affairs Council of 29 May 2000 which in part dealt with
telecommunications interception was careful not to take such a clear-cut position. Referring to
the work of Parliament, it simply referred the Echelon case to a working party. The Council both
condemned the commercial aspects of telecommunications interception and affirmed its value
for combating crime and the defence of national security. The attachment it reaffirmed to the
ECHR could, however, have led it to make a more outspoken condemnation of the abuse of
which Echelon has been suspected30.
In a resolution of 11 April 2000 which passed practically unnoticed, the European Parliament's
Committee on Civil Liberties was less inhibited by detail in castigating Echelon on at least two
grounds: the absence of any notification of electronic interceptions carried out by one State on
anothers territory on the one hand and the disproportionate nature of systematic interception in
respect of the right to privacy on the other. The committee maintained that any State using such
an interception system should cease doing so31.
After lengthy procedural wrangling, Parliament finally decided on 5 July 2000 to set up a
temporary committee on Echelon, the UK and German MEPs having been relentless in their
opposition to a committee of enquiry with wider powers, which had been principally supported
by the European Greens. The Temporary Committee, with an initial work programme planned up
to 23 November 2000, has been instructed to ascertain whether Echelon exists and if so whether
it is compatible with Community law, to consider encryption as a means of protecting privacy, to
analyse the risks to European industry and if necessary to make political and legislative
proposals32.
The legal debate is not only whether Echelon is compatible with Directives 95/46/EC and
97/66/EC which protect the privacy of personal data. Article 6(2) of the TEU also makes the
European Convention of Human Rights general principles of Community law. The resolution
adopted by the Committee on Citizens Freedoms and Rights, Justice and Home Affairs on 11
April 2000 expresses doubts about the protection offered by the Convention regarding
interception by a Member State in respect of persons who are not its nationals. Similarly,
Professor Elliotts 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 of
the European Parliament of 30 March 2000. It may be asked why conformity with US law should be claimed in
front of Parliament; conformity with the Convention, as we shall see, is not without reservation. The whole passage
looks curiously like an admission.
29
Libration 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 of
amendments (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 of

solution33.
However, general international law on the one hand and the case law of the bodies of the ECHR
on the other certainly allow actions contesting the validity of extra-territorial interceptions, and
going beyond finding that an alleged offence has taken place. First because in its rulings the
Strasbourg court has generated a body of general principles applicable both to telephone tapping
and the recording of data on private life. Secondly, as no official or media investigations yet
appear to have realised that the European Commission on Human Rights has had to take
cognisance in at least one published decision of an application concerning the interception of
telefaxes sent between a British trade unionist and trade unions in Eastern Europe. There was
nothing 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.Dictionary34,
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 rules
governing it. Territorial sovereignty means that international law acknowledges the extraterritorial normative powers of states, but rules out any extra-territorial powers of execution by
force.35 In other words, a State may extend the field of application of its legislation beyond its
own territory but may not do so in respect of enforcement without obtaining the consent of the
State on whose territory it is carried out.36 Moreover, by virtue of this basic principle of
international law a foreign judgment or administrative act requires an order for enforcement by
the 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 carrying
out arrests, investigations, enquiries, searches, abductions or seizures'37. The draft International
Law Institute Resolution on the limits laid down by international law to the powers of States
over persons within their jurisdiction tabled in January 1999 points out that the State, having a
monopoly 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 to
protect privacy against unlawful interception, either by foreign governments or by non-governmental bodies, p. 1
and its conclusion (p13).
34
Decision of 27 June 1994 in Christie v. UK, Appl. No. 21482/93, DR 78-A, p. 119. An extraordinary lengthy
justification for an inadmissibility decision , included the following in its description of the facts of the case: In or
about 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 routinely
intercepted by GCHQ (Government Communications Headquarters) which is the United Kingdoms central
intelligence-gathering centre. Information from those telexes had been collated and reported to other government
agencies. The evidence for these allegations was provided anonymously by a former GCHQ employee, who also
stated that at a particular address in London all telexes passing in and out of London were intercepted and fed into a
programme known as the Dictionary, which picked out key names and words. He stated that the Dictionary was
monitored by carefully vetted British Telecom employees to give the impression that GCHQ was not carrying out
the 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 Lotus
case, 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 acts
are carried out. The Institute also formally lays down that individuals must be able to dispute
extra-territorial acts affecting them.38
The debate is not confined to the international law specialists. Community law also includes
texts dealing with extra-territorial telephone tapping, which cannot be unknown to the EU States
which are also parties to Echelon. The first recital in the Council resolution of 17 January 1995
on the lawful interception of telecommunications is perfectly clear reaffirming the need, when
implementing telecommunications in interception measures, to observe the right of individuals to
respect for their privacy as enshrined in the territorially applicable national law. 39 Having
been consulted on another Council draft resolution on the same topic, the European Parliament
noted that this resolution is not binding in nature and gives law enforcement authorities in the
Member States no right of interception outside their own jurisdiction. 40 Respect for territorial
sovereignty is all the more topical as the draft Council of Europe convention on cyber-crime
unveiled on 27 April 2000 and negotiated with the US in particular, still allows for the possibility
of electronic seizures and searches and telephone tapping outside the territory of the requesting
State in the absence of agreement on the form international collaboration is to take41. Similar
concerns moved the European Parliament in February 2000 to delete Article 18 of the draft
Council Act establishing the Convention on mutual assistance in criminal matters between the
Member States of the European Union as this provision would have allowed the interception of
electronic communications on the territory of another Member State without technical assistance
of 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 the
other 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 which
would put them in clear contravention of the most elementary principles of international law, as
well 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 machinery
derogating from the domestic rights protecting privacy against telephone tapping and in doing so disregarding the
basic requirements of foreseeability and accessibility (see the criticisms expressed in Recommendation 2/99 on
respect for privacy in the context of the interception of telecommunications adopted on 3 May 1999 by the Article
29 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 Council
resolution 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 on
this draft act for the Committee on Citizens Freedoms and Rights, Justice and Home Affairs, PE 232.057/fin, pp. 38
and 50-51.
43
OJ. L 281, 23 November 1995, p. 11. The differences between the Union and the USA which opposes this rule
have been the focus of hard-fought negotiations (see opinions 3/2000 of 16 March 2000 and 4/2000 of 16 May 2000
on the level of protection provided by the safe harbour principles given by the Article 29 working party on data
protection, 5019/00/EN/final, WP 31 and CA07/434/00/EN, WP 32). See also the draft additional protocol to
Council of Europe Convention No 108 on the protection of individuals relating to data banks, published on 8 June
2000 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 the
direct detriment of persons residing on the territory of non-Echelon states and in particular those
which, like Belgium, prohibit administrative telephone tapping45. Article 53 of the European
Human Rights Convention gives precedence to domestic law over the Convention if it gives
greater protection of the rights it underpins. This is the case here as the Strasbourg Court in some
circumstances, which are not present in the Echelon case, authorises judicial and administrative
interception.
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 and
its modern variants46

At an early stage, a dynamic interpretation of individual terms in the Convention by the bodies
applying it allowed telephone tapping to be classified as interference with the exercise of the
right to private life and correspondence guaranteed by Article 8 although not explicitly
mentioned in it 47. The scope of 'private life' is a broad one and may not be restrictively
interpreted as 'the respect for private life encompasses the right of the individual to initiate and
develop relations with others'48.
It is noteworthy that many European instruments expressly refer to Article 8 of the European
Human Rights Convention in order to indicate to States how to regulate telecommunications
pursuant 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 to
computer crime, Doc. Parl. Chamber. so. 1999-2000, 50 0213/001 and 50 0214/001, pp. 45-47 and point 17 of the
annex to recommendation R (95)13 of 11 September 1995 of the Council of Ministers of the Council of Europe on
the 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 to
telecommunications) nor the law of 30 June 1994 on the protection of privacy against the tapping, cognisance and
recording of private communications and telecommunications (Articles 219a and 314a of the Penal code, Articles
90b et seq. of the Criminal investigation code) or the organic law of 30 November 1998 on the intelligence and
security services (Article 259a (4) of the Penal code: military interceptions abroad) authorised telephone tapping by
any administrative authority going beyond purely technical aspects. The Lieutenant General heading the general
intelligence service of the Belgian Army also rightly claimed before the R Committee that Echelon would be
unlawful 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 which
recognises the right to an effective remedy, which may also be regarded as being flouted in several respects. See the
full 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 why
this understanding of the notion of "private life" should be taken to exclude activities of a professional and business
nature'.
49
This is true of all instruments whether they take the form of conventions or resolutions of the Council of Europe
concerning privacy since Convention No 101 of 28 January 1981 for the protection of individuals in respect of the
automatic processing of personal data (http:/222.coe.fr/dataprotection/fdocs.htm). See also in Community law inter
alia Directive 97/66/EEC (OJ L 24, 30.1.1998). A broad interpretation of the right to respect full privacy has also
been put forward by the UN Human Rights Committee in respect of Article 17 of the International Convention on
Civil and Political Rights (The right to the protection of the law against arbitrary or unlawful interference with
privacy, 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 to
telephone services adopted by the Committee of Ministers on 7 February 1995 was very
revealing, stating that the protection established in this provision also extended to the guarantee
of the secrecy of correspondence. For the European Court of Human Rights this guarantee had to
apply to telephone conversations as well as mail. The Court's wish to make the European Human
Rights Convention technologically relevant therefore had to be regarded as authorisation for
placing the whole range of telecommunication services, allowing communication or
correspondence between subscribers or users under the protection referred to in Article 8 of the
European Human Rights Convention50.
Any interference51 taken in isolation and in whatever medium used, therefore has to comply with
Article 8, in the knowledge that 'the existence . of legislation and practices authorising and
establishing a system of secret communications surveillance is in itself interference'52. It matters
little whether the recordings made are subsequently used53. Nor is the actual content of the
intercepted communication particularly important54. Nor does it matter much whether the
intercepted calls are to or from the home or business premises; Article 8 of the Convention
applies to them all55 . The same applies whether tapping aimed at one individual is carried out on
a line belonging to a third party56.
The judgment in the Klass case set out the conditions for compatibility with Article 8 with
particular vehemence, 'the cardinal issue arising under Article 8 in the present case is whether
the interference so found is justified by the terms of paragraph 2 of the Article (Art. 8-2). This
paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be
narrowly interpreted. Powers of secret surveillance of civilians, characterising as they do the
police state, are tolerable under the Convention only insofar as strictly necessary for
safeguarding the democratic institutions'57. These principles govern both judicial and
administrative 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, but
also 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 records
of 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 Rights
site 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 of
Europe, 29.
51
By definition interference implies a constraint on the right to privacy: see Coussirat-Coustere 'Article 8(2)' in La
Convention europenne 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, 27
June 1984, 64.s
53
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 coutes
tlphoniques' 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 coutes tlphoniques' in Mlanges 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 being
complied with only if any interference (and there is interference in the slightest capture of any
message whatever even if there is no subsequent processing) respects three cumulative
conditions: 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 with
the law' means that the lawfulness requirement is complied with if domestic law, when it allows
telephone tapping or the retention of personal data, is sufficiently accessible on the one hand and
sufficiently foreseeable on the other62.
However, even before considering whether the laws of the States taking part in Echelon are of
such a nature we have to ascertain that such laws do indeed exist. It is no easy matter to decide
what law is applicable to Echelon (US law? On its own or in conjunction with UK law? The laws
of all the countries participating?). Too often we forget, as it all seems so pre-ordained, that
interference in a guaranteed right, to be 'in accordance with the law' for the purposes of the
Convention, 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 is
true that international law, even when it is as complex and technical as that relating to
telecommunications, may have the status of 'law' if it is sufficiently accessible, clear and
precise65. But can the secret UKUSA agreement, of which we do not know whether it regulates
interception nor if it designates which legislation applies, nor how it treats the rights of nonfounder 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 sufficiently
accessible. The Khan judgment of 12 May 2000, the third to go against the UK on the question
of tapping, is also a first in the Strasbourg case law as it was the lack of accessibility of the
English law applying to police telephone tapping of a supposed drug dealer which resulted in a
breach of Article 8. The circulars which were followed could in fact only be consulted in the
House of Commons Library66, in which the UK Government said on 5 June 2000 in reply to a
parliamentary question the secret agreements with the US governing the administration of the
Menwith 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).
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 the
absence of any domestic legal basis and, hence, of any 'law' governing the telephone tapping contested in these
cases.
64
Judgment in Barthold v. Germany of 25 March 1985, para. 48. While consideration of conformity with domestic
law is quite exceptional in Strasbourg case law, as the Court declines to stand in for the national authorities in this
respect, it has however just been done in the judgment in Dulaurans v. France Case of 21 March 2000 on the
grounds of a clear error of assessment by the French 'Cour de cassation' which had rejected an appeal. In this respect
we should note that the Regulation of Investigatory Powers Act adopted on 25 July by the UK Parliament in clause
2.4. confines the scope for telephone tapping to conversations from, to, or within British territory. Otherwise there
would 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 of
the three-month time limit for appeals to the Grand Chamber of the Court.
62

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conducting Authorisation Act for Fiscal Year 2000 of the US Congress sought to know the legal
basis on which the NSA electronic interceptions, one might well ask what accessibility there is to
legal 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, we
may also doubt its foreseeability. The Leander v. Sweden judgment of 26 March 1987 illustrates
how 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 in
sectors 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 to
give them an adequate indication as to the circumstances in which and the conditions on which
the public authorities are empowered to resort to this kind of secret and potentially dangerous
interference 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 the
status of substantive law, insofar as those concerned are made sufficiently aware of their
contents'67.
The foreseeability of a law, which is an essential criterion for the lawfulness of interference in
privacy, has been missing in several telephone tapping cases the Court has had to consider. It
happened in the Malone v. UK Case as the Court could not say 'with any reasonable certainty
what elements of the powers to intercept are incorporated in legal rules and what elements
remain within the discretion of the executive'68. And, on the heels of the judgments against
France in the Huvig and Kruslin Cases in 199069, the Valenzuela Contreras v. Spain judgment of
30 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: the
definition of the categories of people liable to have their telephones tapped; the nature of the
offences which give rise to such an order; a limit on the duration of telephone tapping; the
procedure for drawing up the summary reports containing intercepted conversations; the
precautions to be taken in order to communicate the recordings for inspection by the judge and
defence; 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 creation
of 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 for
information and the applicant was able to consult his card. The Court considered that the Swiss
Code of Criminal Procedure was not foreseeable enough as 'the primary object of the () Act is
the surveillance of persons suspected or accused of a crime or a major offence () or even third
parties presumed to be receiving information from or sending it to such persons (), but the Act
does not regulate in detail the case of persons monitored "fortuitously" as "necessary
participants" in a telephone conversation recorded by the authorities pursuant to those

67

Leander judgment, 26 March 1987, para. 51.

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 that
Article 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 in
terms of legislation or case law had occurred between the disputed interception and the judgment of the Court, a
breach of Article 8 of the Convention had occurred in view of the lack of foreseeability of the Spanish law.
68

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provisions. In particular, the Act does not specify the precautions which should be taken with
regard to those persons'71.
The Rotaru v Romania judgment of 4 May 2000, in a case where intelligence services recorded
political activities, the Court maintained these strict requirements: In order for systems of secret
surveillance to be compatible with Article 8 of the Convention, they must contain safeguards
established by law which apply to the supervision of the relevant services activities. Supervision
procedures must follow the values of a democratic society as faithfully as possible, in particular
the rule of law, which is expressly referred to in the Preamble to the Convention. The rule of law
implies, inter alia, that interference by the executive authorities with an individuals rights
should 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 of
lawfulness? We may have our doubts, especially as such a blatant breach of general international
law as arises from extraterritorial interception would be difficult to regard as compatible with
that principle.
3.

Echelons 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 as
telephone 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 process
leading to measures of interference must be fair and such as to afford due respect to the interests
safeguarded to the individual by Article 873 . But the concept of necessity above all implies that
interference in privacy must meet an imperative need of society and should in particular be
proportionate to the legitimate goal being pursued. Thus some excessively general restrictions on
the 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 of
surveillance and the development of terrorism and highly sophisticated forms of espionage. The
judgment, which dealt with administrative telephone tapping, provided an opportunity for
pointing out to States how they might use their margin for interpretation: as concerns the fixing
of the conditions under which the system of surveillance is to be operated, the Court points out
that the domestic legislature enjoys a certain discretion. It is certainly not for the Court to
substitute for the assessment of the national authorities any other assessment of what might be
the best policy in this field (...). Nevertheless, the Court stresses that this does not mean that the
Contracting 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 the
card 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 Convention
is 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 a
bankrupts mail (Foxley v UK judgment of 20 June 2000, para. 43, especially as his lawyers letters had also been
opened). The same prohibition of the indiscriminate censure of prisoners mail was restated in respect of an
assessment 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 or
even destroying democracy on the ground of defending it, affirms that the Contracting States
may not, in the name of the struggle against espionage and terrorism, adopt whatever measures
they deem appropriate.75
At this point we may consider the exploratory and general nature of a surveillance system such
as Echelon, as denounced in the resolution of 11 April 2000 of the European Parliaments
Committee on Civil Liberties, as a plain breach of Article 8 of the Convention. In the Miailhe
case, in which a breach of that provision in the course of customs searches and seizures was
established, 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 be
of no relevance to their inquiries and returned them to the applicants76. In the Klass case, the
fact that so-called exploratory or general surveillance is not permitted by the contested
legislation had some influence on the Courts assessment of the conformity of the German
system of administrative tapping77. Moreover, the UN Human Rights Committee also insists that
interference with the right to respect for private life and correspondence, whether it is a question
of administrative or judicial tapping, should take place only on a case-by-case basis78. The
wholesale and indiscriminate nature of the tapping and interception involved in the Echelon
programme may thus turn out to be a breach of Article 8 of the Convention79. This will allow
Echelon 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 for
participation in Echelon
a. The vigilance requirements laid down in the Convention

The obligations States incur when acceding to the Convention do not only involve refraining
from infringing it80. The protection of guaranteed fundamental rights also in some circumstances
requires the State to adopt, with a margin of appreciation in doing so, certain measures to ensure
the actual and specific respect of these rights: this is the theory of positive obligations81. The
positive obligations' theory focuses on the applicability of fundamental rights in relationships
between individuals. Only States may of course be brought before the European Court of Human
Rights, 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 March
1987, 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 the
Article 29 Working Party.
79
As G. COHEN-JONATHAN notes in Les coutes tlphoniques, Mlange G.J. WIARDA, Cologne, Karl
Heymanns Verlag. 1988, p. 101, surveillance cannot be exploratory or general. A person has to be suspected of
having committed an act liable to such investigation. Authorisation for tapping therefore has to be precisely
reasoned and may relate to only one inquiry at a time. This system cannot therefore be used unless traditional
methods 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 many
words.
81
For a recent example see the zgr Gndem v Turkey judgment of 16 March 2000, paras. 42-43. F. SUDRE, Les
obligations positives dans la jurisprudence europenne des droits de lhomme, RTDH 1995, pp. 363-384.

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obligation imputable to the State in question, involving its international responsibility and, where
appropriate, involving a judgment against it82.
International practice shows, while it cannot be held responsible for the behaviour of third
international parties, including foreign intelligence services simply because their activities took
place on its territory, 'the territorial State must nevertheless remain vigilant towards events on its
territory83'. The Interamerican human Rights Court defined this obligation perfectly and its
famous Velasquez judgement, 'Thus, in principle, any violation of rights recognised by the
Interamerican Human Rights Convention carried out by an act of public authority or by persons
who use their position of authority is imputable to the State. However, this does not define all the
circumstances in which a State is obligated to prevent, investigate and punish human rights
violations, nor all the cases in which the State might be found responsible for an infringement of
those rights. An illegal act which violates human rights and which is initially not directly
imputable to a State (for example, because it is the act of a private person or because the person
responsible has not been identified) can lead to international responsibility of the State, not
because of the act itself, but because of the lack of due diligence to prevent the violation or to
respond to it as required by the Convention.'84. The vigilance requirement therefore implies a
duty both to prevent the violation and to take effective action against its perpetrators85. The
European Court applied similar principles in respect of serious infringements such as breaches of
Article 3 of the Convention prohibiting torture or the destruction of dwellings in contravention of
the right to respect for the home and the right of property. Even if the complaint is sufficiently
defensible, 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 has
taken all necessary precautions to avoid a breach of the Convention87. But, unless Germany and
the UK at least officially and publicly protest against the use of their territory by foreign
intelligence services, or put an end to the use of their territory in contravention of the Convention
which has been violated by systematic policy of massive interceptions, these states would be
violating the Convention as much as general international law. Even if we admit that the duty of
due diligence on the State is watered down in the 'sovereignty' area of international relations or
in that of defence, the duty does not disappear, especially for States which have signed the
82

L. CONDORELLI L`imputation LEtat dun fait internationalement illicite: solutions classiques et nouvelles
tendances RCADI, 1984, VI, p. 154, studies in detail this example of the applicability of the Human Rights
Convention in relations between individuals and rightly concludes that what is involved here is the implementation
of a traditional duty of vigilance, as the establishment of the international responsibility of the State does not in any
way depart from the rules the UN International Law Commission is seeking to codify; moreover, by acceding to an
agreement to protect human rights a State may perfectly well be subscribing to rules imposing more onerous
responsibilities.
83
J. SALMON and P. KLEIN, Responsabilit internationale, t. I, Presses Universitaires of Bruxelles, 1998-1999, p
96.
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 responsabilit des Etats au
regard of la Convention europenne', 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 'rzte fr 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 its
own 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 international
responsibility into play. The same may apply when that state 'repatriates' the product of
interceptions carried out by another State on its behalf, because in general international law there
is 'every State's obligation not to allow knowingly its territory to be used contrary to the rights of
others'88.
The very nature of the obligations incurred by the States party to the European Human Rights
Convention amplify this duty of vigilance89. These are objective obligations90 as confirmed in
the European Commission for Human rights' famous decision in Austria v. Italy91. It is the
structure which gathers together these objective obligations and the system of collective
guarantees which protects them which make the Convention 'a constitutional instrument of
European 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 or
international norms.
b. The primacy of the Convention over other international acts of the States
party to it
The former European Human Rights Commission and the Court had several opportunities to
consider 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 cases
arising from relationships between individuals and in disputes arising from the way in which a
State conducted its international relations. If the failure to fulfil a duty of vigilance falls within
the traditional territorial responsibility, an extension of jurisdiction (within the meaning of
Article l of the Convention) beyond national territory may also spring from an equally traditional
theory: 'the term "jurisdiction" is not limited to the national territory of the High Contracting
Parties: their responsibility can be involved because of acts of their authorities producing effects
outside their own territory'94. Intercepting a conversation in Belgium from the Menwith Hill
Anglo-US base involves the responsibility of the UK in respect of the Convention, and the fact
that the US is not a party does not in any way lessen the former's obligations.

88

ICJ, Corfu Channel case, 1949, p 18.

See communication by G. COHEN-JONATHAN on 'responsibility for breaches of human rights in la
responsabilit dans le systme international, Le Mans, Symposium of the Socit Franaise 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 de
l'homme et l'volution 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 responsabilit de l'Etat pour violation des les droits de l'homme Problmes
d'imputation, Paris, Pedone, 1994.
94
Drozd and Janousek v. Spain and France Judgment of 26 June 1992, 91; judgment on preliminary objections in
the Loizidou v. Turkey case of 23 March 1995, 62.
89

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In fact the imputability to a contracting party to the Convention of a failure to comply with it
may result from either an export violation starting from its territory (for example in extradition
cases where an individual on the territory of one party might be liable to the death penalty or
torture in the applicant country95) or a violation imported into that States territory (for example
where the court on the spot has to apply a foreign rule in private international law or a criminal
conviction delivered abroad96). As Pierre Apraxine summed it up so well, 'in the event of
flagrant and obvious violations already committed or genuine risks of violations, supported by
serious grounds for believing in its existence, the Court shall lay down that States must refrain
from providing assistance either by allowing the performance of the contested act or by
executing it via their own legal system' 97. The conditions for an obvious, flagrant and wholesale
violation of the Convention would seem to be abundantly present if we consider the philosophy
of the Echelon programme which is said to be able to intercept most continental
communications, under inaccessible and vague rules which persons not residing on the territory
of the participating countries have no means of contesting.
More fundamentally, the transnational dimension of a violation of Article 8 of the Convention
may be the result of the way in which a State conducts its international relations on its territory
when the contested act relates to the State's own actions in its relations with an international
organisation or a third state98. The Matthews v. UK judgment of 18 February 1999 concerning
the failure to organise European Parliament elections on the territory of Gibraltar did not hesitate
to voice the primacy the Court gives to the Convention even where a State is a party to other
international treaties: Para 29 - [Article 1] makes no distinction as to the type of rule or
measure concerned, and does not exclude any part of the member States' jurisdiction from
scrutiny under the Convention (see the United Communist Party of Turkey and Others v. Turkey
judgment of 30 January 1998) . Para 32. Acts of the EC as such cannot be challenged before the
Court because the EC is not a Contracting Party. The Convention does not exclude the transfer
of 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, is
responsible ratione materiae under Article 1 of the Convention and, in particular, under Article
3 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 the
conformity with it of the acts of a Contracting Party State, even by treaty or agreement, in the
framework of its relations with other subjects of international law. This is because the State is
still responsible for its own acts and omissions in respect of the European Human Rights
Convention 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 1996
judgement, 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 of
justice; P. Courbe, Private international law and the problems of incorporating the Convention in to the French
system in P. Tavernier (dir.). Quelle Europe pour les droits de lhomme? 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 international
organisation whose personality could not in any case be challenged by third parties, the State is still responsible for
its 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 on
immunity 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. The
Convention by virtue of its special nature, ranks above its Party States' other international
commitments 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 as
host for a listening station (like Germany) but has taken an active part in tapping and
interception, its international responsibility is involved not only for having allowed acts
equivalent to violations to be perpetrated from its territory by non-Party States; it is said itself to
be directly violating the Convention by using its own services acting within the Echelon
programme 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 right
to respect for private life.

The risk of violation of the rights to respect for private life and correspondence which we all run
by using public or private telecommunication services is difficult to foresee. Individuals wishing
to apply to the European Court of Human Rights have to prove that they have been the victims of
a violation of the Convention within the meaning of Article 34 thereof. The prohibition of actio
popularis in European legal systems would also appear to rule out the admissibility of
applications made by associations seeking to defend collective interests.102. Legal persons may
however lodge applications if they can prove they are victims of a breach of Article 8, which
implies 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 the
Convention. The Klass judgment did however apply the concept of a potential victim in respect
of secret surveillance measures such as phone tapping: 'In principle, it does not suffice for an
individual applicant to claim that the mere existence of a law violates his rights under the
Convention; 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 by
the law in the absence of any specific measure of implementation' 104. The Court goes on to
consider that the secrecy of the measures objected to should not stand in the way of the
effectiveness of the Convention which 'implies in such circumstances some possibility of having
access 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 La
Convention europene de droits de lhomne, Brussels, Nemesis, 1992, pp. 18-19.
101
See in particular the basic study by G. Cohen-Jonathan, relationships between the European Human Convention
and 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 Purcell
and others v. Ireland, DR 70, p. 262. On the same topic L.E. Pettiti and O. De Schutter, The role of associations in
the 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 and
32201/96, Herbecq and association League des droits de lhomme v. Belgium, ECHR vol. 41, 1998, p. 63. Refused
to recognise as a victim an association which on the basis of Article 8 contested the absence of legislation of
surveillance systems in public places on the grounds that a legal person cannot be filmed and cannot therefore be a
victim of the use of cameras. The case of telephone tapping should be different especially when it results in the
electronic storage of data on undertakings commercial policies, in particular if a company loses a market because a
rival 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 of
secret measures or of legislation permitting secret measures, without having to allege that such
measures were applied to him'105. Even more specifically, 'any of the permitted surveillance
measures, once applied to a given individual, would result in an interference by a public
authority with the exercise of that individual's right to respect for his private and family life and
his 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 menace
necessarily strikes at freedom of communication between users of the postal and
telecommunications services and thereby constitutes an 'interference by a public authority' with
the 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 but
does vigorously protect the individual 107, the Rotaru judgment, referring explicitly to the Klass
judgment, stated that 'a decision or measure favourable to the applicant is not in principle
sufficient to deprive him of his status as a 'victim' unless the national authorities have
acknowledged, either expressly or in substance, and then afforded redress for, the breach of the
Convention' 108. In May 2000 the Court was therefore still authorising individuals to claim that
status which, having been reaffirmed in a case of data recording by intelligence services, will be
all the more important in contesting Echelon.
b.

Echelon constitutes a body of administrative practices whose existence

requires the exhaustion of domestic remedies

The principle of the prior exhaustion of domestic remedies before any action may be brought
before the European Court of Human Rights is set out in Article 35(1) of the European Human
Rights Convention. This general principle of international law seeks to allow the State to
remedy alleged breaches 109; complaints based on violation of the Convention should at least
have been raised in substance before the national courts in compliance with the formal
requirements and time-limits laid down in domestic law 110. This principle does involve a
number of limits or exceptions in the legal system appertaining to the Convention: if there is no
adequate legal channel; if no adequate legal channels are open to the applicant; if there is no
chance of success with existing remedies; if special circumstances make remedies impossible or
pointless; if unlawful 'administrative practices' make the use of any remedy pointless111. We shall
be 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 a
victim of metering of telephone calls, simply because the applicant was a member of a class of persons potentially
liable to be directly affected by this practice, quite apart from any concrete measure of implementation taken against
him. 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 europens des droits fondamentaux, 2nd
edition, 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 Linterprtation de la Convention europenne des droits
de lhomme, 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 europenne des
droits de lhomme Commentaire article par article, 2nd edition, Paris, Economica, 1999, p. 603-610. Also D. de
BRUYN, ' Exhaustion of domestic remedies', in La procdure devant la nouvelle Cour europenne des droits de
lhomme aprs 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 administrative

practices whose existence removes the need, before approaching the European Court of Human
Rights, to exhaust any remedies established by the domestic law of the countries, which are
moreover 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 application
that 'in principle, the rule does not apply where the applicant State complains of a practice as
such, with the aim of preventing its continuation or recurrence, but does not ask (...) the Court
to 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 law
of the old Commission 114. Nor does the Strasbourg Court see any objection to an individual or
individuals claiming that the existence of administrative practices or the like should relieve them
of 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. In
addition, according to the "generally recognised rules of international law" there may be special
circumstances which absolve the applicant from the obligation to exhaust the domestic remedies
at his disposal. The rule is also inapplicable where an administrative practice consisting of a
repetition of acts incompatible with the Convention and official tolerance by the State authorities
has 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 or
analogous breaches which are sufficiently numerous and inter-connected to amount not merely
to isolated incidents or exceptions but to a pattern or system; a practice does of itself constitute a
violation separate from such breaches' 116.
Professor Picard has summed up the conditions for it to exist 117. The first is the gravity of the
violation of the Convention by the contested acts, that gravity to depend on both the flagrancy of
the violation and the importance of the rights violated. In the light of the European Court of
Human Rights' consistency and rigour in its case law, treating secret surveillance of the citizens
as a characteristic of a police state, the importance of the rights that have been violated cannot be
in doubt. The outrage at the existence of Echelon felt in national parliamentary circles in Europe
and the US and the European Parliament is also indicative of the flagrancy of the violations. The
second 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 only
be sanctioned if each instance of the interception of individuals' communications taken
separately meets the three cumulative requirements of lawfulness, legitimacy and necessity; the
Echelon programme seems to be a pattern or a system itself. The third and final condition is 'the
tolerance of these facts by the respondent state, this itself being a result of the absence of any
significant 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 the
International Court of the Law of the Sea in the Saga 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 to
exhaust 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 and
the 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 either
ignorance of the activities nor their inability to put a stop to them'. The various denials are
hardly convincing now 118.

'Powers of secret surveillance of citizens, characterising as they do the police State, are
tolerable under the Convention only in so far as strictly necessary for safeguarding the
democratic institutions' 119. That is the view the European Court of Human Rights has taken of
telephone tapping since 1978. The 'international' character of such interception does not change
anything or, as Professor Sudre put it so well, 'European public order could not tolerate a
situation in which these values might be ignored on the territory of a contracting party State on
the grounds that doing so was the result of a foreign judgment or act' 120. The Echelon
international programme goes far beyond the need for the interception of telecommunications, in
a democratic society, the strict conditions governing which have just been repeated again by the
European Court of Human Rights in 2000 in its Amann v. Switzerland, Rotaru v. Romania and
Khan v. United Kingdom judgments, all three of which went against the respondent State. While
the Strasbourg case law, henceforth applied in the new context of Protocol No 11, occasionally
runs into turbulence, it is a field in which increasing protection on principle for the individual is
a constant factor: protecting privacy against secret surveillance 121. This in singular contrast with
the proliferation of public and private interference with the right to respect for private life of
which 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 its
close 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 europen ?, in P. TAVERNIER (dir.), Quelle Europe pour les droits de
lhomme, Bruxelles, Bruylant, 1996, p 79.
121
For some time judgments have clearly tended to increase the duties on States (in particular by a very protective
interpretation of the right to effective remedy provided by Article 13 of the Convention) and to relax the procedural
requirements for applicants contesting systematic violations of the Convention: J. F. FLAUSS, 'La Cour de
Strasbourg face aux violations systmatiques des droits de lhomme', in Mlanges P. LAMBERT, Brussels, Bruylant,
2000, pp 348-353.

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New .eu Domain

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

Page: 6
Type: 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.

Addendum: 1