A/HRC/14/46 what powers may be used against them. This is particularly important given that many of the powers held by intelligence services have the potential to infringe upon human rights and fundamental freedoms.10 This practice is closely connected to practice 2, because the mandates of intelligence services serve to define the framework within which they can use the powers given by the legislature.11 A prohibition of détournement de pouvoir is implicit in the legislation of many States as intelligence services are only permitted to use their powers for very specific purposes. This is particularly in the context of counter-terrorism, because many intelligence services have been endowed with greater powers for these purposes. Practice 4. All intelligence services are constituted through, and operate under, publicly available laws that comply with the Constitution and international human rights law. Intelligence services can only undertake or be instructed to undertake activities that are prescribed by and in accordance with national law. The use of subsidiary regulations that are not publicly available is strictly limited, and such regulations are both authorized by and remain within the parameters of publicly available laws. Regulations that are not made public do not serve as the basis for any activities that restrict human rights. Practice 5. Intelligence services are explicitly prohibited from undertaking any action that contravenes the Constitution or international human rights law. These prohibitions extend not only to the conduct of intelligence services on their national territory but also to their activities abroad. 12. Intelligence services are organs of the State and thus, in common with other executive bodies, are bound by relevant provisions of national and international law, and in particular human rights law.12 This implies that they are based upon and operate in accordance with publicly available laws that comply with the Constitution of the State, as well as, inter alia, the State’s international human rights obligations. States cannot rely upon domestic law to justify violations of international human rights law or indeed any other international legal obligations.13 The rule of law requires that the activities of intelligence services and any instructions issued to them by the political executive comply with these bodies of law in all of their work.14 Accordingly, intelligence services are prohibited from undertaking, or being asked to undertake, any action that would violate national statutory law, the Constitution or the State’s human rights obligations. In many States, these requirements are implicit; however, it is notably good practice for national legislation to make explicit reference to these broader legal obligations and, in particular, to the obligation to respect human rights.15 Subordinate regulations pertaining to the internal 10 11 12 13 14 15 GE.10-13410 Council of Europe (footnote 4), art. V (i); European Court of Human Rights, Malone v. The United Kingdom, para. 67. Canada, MacDonald Commission, pp. 432, 1067. General Assembly resolution 56/83, annex, art. 4 (1); Dieter Fleck, “Individual and State responsibility for intelligence gathering”, Michigan Journal of International Law 28, (2007), pp. 692– 698. General Assembly resolution 56/83, annex, art. 3. Brazil (footnote 2), art. 1(1); Sierra Leone, National Security and Central Intelligence Act, art. 13(c); United States Senate, Intelligence activities and the rights of Americans¸ Book II, final report of the select committee to study governmental operations with respect to intelligence (hereafter: Church Committee), p. 297; Canada, MacDonald Commission, pp. 45, 408; Economic Community of West African States Draft Code of Conduct for the Armed Forces and Security Services in West Africa (hereafter ECOWAS Code of Conduct), art. 4; Committee of Intelligence and Security Services of Africa, memorandum of understanding on the establishment of the Committee of Intelligence and Security Services of Africa (hereafter CISSA MoU), art. 6. Argentina (footnote 2), art. 3; Bulgaria, Law on State Agency for National Security, art. 3 (1) 1–2; 7