A/HRC/14/46
provides a check on the legality of intelligence-sharing practices, and is an important
safeguard against the sharing of personal data that may have serious human rights
implications for the individuals concerned.
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.
50.
National laws regulating the activities of intelligence services provide legal and
institutional safeguards to protect human rights and the constitutional legal order within the
context of intelligence activities. In view of this, it would be contrary to the rule of law for
States or their intelligence services to request a foreign entity to undertake activities in their
jurisdiction that they could not lawfully undertake themselves. It would be good practice
for national law to contain an absolute prohibition on intelligence services cooperating with
foreign entities in order to evade legal obligations that apply to their own activities.172 In
addition, it is important to recall that States have an international legal obligation to
safeguard the rights of all individuals under their jurisdiction. This implies that they have a
duty to ensure that foreign intelligence services do not engage in activities that violate
human rights on their territory, as well as to refrain from participating in any such
activities.173 Indeed, States are internationally responsible if they aid or assist another State
to violate the human rights of individuals.174
172
173
174
GE.10-13410
European Parliament Temporary Committee on the Echelon Interception System, report on the
existence of a global system for the interception of private and commercial communications, A50264/2001, pp. 87–88 (hereafter European Parliament, Echelon report); Church Committee report, p.
306.
Human Rights Committee, general comment No. 31 on the nature of the general legal obligation
imposed on States parties to the Covenant (CCPR/C/21/Rev.1/Add.13), para. 10; European
Parliament Echelon report, pp. 87–89.
Human Rights Committee, general comment No. 31; General Assembly resolution 56/83, annex, art.
16; Secretary-General of the Council of Europe, Secretary-General’s report under art. 52 of the
European Convention on Human Rights on the question of secret detention and transport of detainees
suspected of terrorist acts, notably by or at the instigation of foreign agencies, SG/Inf (2006) 5, paras.
23 and 101.
29
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