BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
the scope of surveillance under the order, which was not subject to judicial
oversight.
492. In EPIC’s view, surveillance by the NSA would violate Article 8 of
the Convention for failure to limit the scope of application and duration, and
the failure to provide adequate supervision, notice and remedies.
(x) The International Commission of Jurists (“ICJ”)
493. The ICJ referred the Court to Articles 15 and 16 of the Articles of
State Responsibility of the International Law Commission
(“the ILC Articles”). They contended that, pursuant to Article 15, a
Contracting State could be responsible for mass surveillance conducted by a
non-Contracting State if they were acting in organised and structured forms
of co-operation; and that, pursuant to Article 16, a Contracting State could
be responsible for mass surveillance conducted by a non-Contracting State
if it contributed to the surveillance programme and had actual or
constructive knowledge of the breaches of international human rights
obligations inherent in the system. The ICJ further submitted that
Contracting States participating in or contributing to a mass surveillance
programme were obliged to establish a system of safeguards for the
protection of Article 8 rights, and were also under a duty to protect persons
within their jurisdiction from violations of Article 8 rights caused by mass
surveillance programmes.
(xi) The Law Society of England and Wales
494. The Law Society submitted that the section 8(4) regime and
associated Codes provided no robust or transparent safeguards for legally
privileged material. Since the same safeguards applied to privileged material
obtained by foreign States and disclosed to the intelligence services of the
United Kingdom, the same deficiencies also tainted that regime.
(d) The Court’s assessment
(i) The applicable test
495. In the Chamber’s view, the interception of communications by
foreign intelligence services could not engage the responsibility of a
receiving State, or fall within that State’s jurisdiction within the meaning of
Article 1 of the Convention, even if the interception was carried out at that
State’s request (see paragraph 420 of the Chamber judgment). First of all, in
so far as some of the third parties had invoked the ILC Articles, the
Chamber considered that these would only be relevant if the foreign
intelligence services were placed at the disposal of the receiving State and
were acting in exercise of elements of the governmental authority of that
State (Article 6); if the receiving State aided or assisted the foreign
intelligence services in intercepting the communications where that
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