5
Legality in case of
international intelligence
cooperation
With the globalisation of conflicts and the common
transnational feature of threats such as terrorism,
the benefits of international cooperation are well
established. To achieve their goals, intelligence services
may need specialist resources or access they do not
have nationally, such as to acquire data that neither
their domestic nor foreign intelligence operations
can provide. To this end, EU Member States may
establish partnerships with each other and with non-EU
intelligence services through international intelligence
cooperation. International intelligence cooperation
is a very sensitive, complex and secretive field, as it
touches closely on states’ sovereignty, and leaks or
miscommunication can result in serious diplomatic
crises. Very few countries disclose information on
international cooperation, its processes, and existing
safeguards intelligence services are expected to follow.
However, recent scandals, growing media interest,
academic and civil society publications as well as
the explosion of the use of big data techniques have
hastened a global trend of increased transparency in
this area as well.171 This section analyses the legality
and transparency principles currently in force in
EU Member States.
The necessity of international cooperation
“International cooperation between intelligence services is indispensable in view of the diverse global security policy challenges. If intelligence services’ exchange
of personal data were prohibited, intelligence services
would be incapable of acting in many areas.”
Germany, Federal Parliament (Deutscher Bundestag) (2017b), p. 1236 [FRA
translation]
171 See Kojm, C. in Goldman, Z. and Rascof, S. eds (2016),
p. 118 and following.
All EU Member States have established such arrangements to greater or lesser degree. A number of EU Member States belong to communication networks for
purposes of intelligence cooperation, which link them
among themselves or with non-European countries (such
as, for instance, the SIGINT Seniors Europe, SSEUR).172
International intelligence cooperation – be it bilateral
or multilateral – is normally based on international and/
or bilateral agreements delimiting the scope of the
collaboration. These agreements may focus on a thematic aspect of the data and techniques on which the
operational cooperation will take place, such as joint
operations, technical support or exchange of classified
information, coordinating the fight against terrorism,
or cooperation on criminal matters.173 An important
addition in recent years is intelligence cooperation for
the purpose of cyber security.174 The following section
details how, and to which extent, international intelligence cooperation is legally grounded in EU Member
States’ legal frameworks.
UN good practices on intelligence sharing laws
Practice 31. Intelligence-sharing between intelligence
agencies of the same State or with the authorities of
a foreign State is based on national law that outlines clear
parameters for intelligence exchange, including the conditions that must be met for information to be shared, the
entities with which intelligence may be shared, and the
safeguards that apply to exchanges of intelligence.
UN, Human Rights Council (2010), Report of the Special Rapporteur Martin Scheinin
172 The SSEUR is composed of the Five Eyes (the U.S., the
United Kingdom, Australia, Canada and New Zealand), and
France, Germany, Spain, Italy, Belgium, the Netherlands,
Denmark, Norway and Sweden. See Germany, Federal
Parliament (2017a), p. 197.
173 Born, H., Leigh, I. and Wills, A. (2015), pp. 29-30.
174 Omand, D. (2014), in Duyvesteyn, I., de Jong, B., van Reijn, J.
eds, pp. 14 and following.
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