11
Oversight of international
intelligence cooperation
The internationalisation of threats led to an increased
need for joint operations and the intensification of
international communication and data exchanges
between intelligence services. This in turn means that
intelligence activities have become more diverse and
include a growing cross-border element.
11.1. Specific safeguards
UN good practice on authorisation process
Practice 32. National law outlines the process for authorizing both the agreements upon which intelligencesharing is based and the ad hoc sharing of intelligence.
Executive approval is needed for any intelligence-sharing
agreements with foreign entities, as well as for the sharing of intelligence that may have significant implications
for human rights.
UN, Human Rights Council (2010), Report of the Special Rapporteur Martin
Scheinin
UN good practice on circumvention
of national obligations through
intelligence-sharing
Practice 35. Intelligence services are explicitly prohibited
from employing the assistance of foreign intelligence
services in any way that results in the circumvention of
national legal standards and institutional controls on their
own activities. If States request foreign intelligence services to undertake activities on their behalf, they require
these services to comply with the same legal standards
that would apply if the activities were undertaken by
their own intelligence services.
UN, Human Rights Council (2010), Report of the Special Rapporteur Martin
Scheinin
The specificities of international intelligence sharing
require Member States to establish safeguards that are
tailored to these processes. These include – but are not
limited to – prior approval of any agreement or pattern
of cooperation by the executive, the implementation of
fundamental rights risk assessments, strong guarantees
for protection of sources and personal information,
data reliability assessments and the obligation
to keep records.
As identified by Born, Leigh and Wills, “requirements
of this kind have a number of benefits. They establish
a clear framework for approval of cooperation activities.
They can help to ensure that cooperation is aligned
with the government’s foreign policy, defence, security,
and diplomatic objectives and does not unwittingly
undermine or contradict these. They ensure that political
overseers have an understanding of the arrangements
that the state’s services have with partners. They allow
for scrutiny to take place of any risks of particular
partnerships at an appropriate political and managerial
level.”413 Prior approval may be required before the
establishment of the agreement and/or before the
exchange of data.
In almost all Member States, intelligence services
must obtain the approval of the executive before
concluding an international agreement. Only in Slovenia
is international intelligence cooperation at the discretion
of the head of the service.414
In the Netherlands, under normal circumstances,
decisions to cooperate with foreign services lie with
the head of the service. However, authorisation by the
413 Born, H., Leigh, I. and Wills, A. (2015), p. 93.
414 Slovenia, Slovene Intelligence and Security Agency Act
(Zakon o Slovenski obveščevalno-varnostni agenciji, ZSOVA),
7 April 1999, Art. 7.
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