It would constitute a violation of both Danish laws and international conventions if the U.S. National Security Agency (NSA) spied against Denmark and the UN climate summit COP15 in Copenhagen in December 2009, say legal experts to Information
A leaked document published in today's paper reveals that the NSA collected signals intelligence about other countries’ preparation and goals for COP15 ahead of the summit and apparently managed to intercept a draft agreement drawn up by Danish officials before the summit.
The document, dated on the first day of the Copenhagen Climate Summit, also describes it as self-evident that the NSA plans to eavesdrop during the climate summit.
»Basically, breaking into other people's computers or networks is a clear criminal offense in Denmark. This applies to casual hackers as well as to a foreign intelligence service like the NSA,« says Jørn Vestergaard, professor of Criminal Law at the University of Copenhagen.
According to Vestergaard, if information intercepted by a foreign intelligence service could be considered of such a nature that it must be kept secret to protect the interests of the Danish government or public, it would be a violation of the espionage sections of the law.
«And it would in any case represent a violation of the penal code provisions on the right to private communication,« says Vestergaard.
The right to communicate confidentially
Anders Henriksen, head of the Center for International Law and Justice at the University of Copenhagen, points out that espionage against the UN is illegal under the 1946 Convention on the Privileges and Immunities of the United Nations.
»This means that UN diplomats at COP15 would be protected against espionage. And my immediate interpretation would be that the same principles apply to diplomatic members of the various national delegations at a UN summit such as COP15. They have to be able to communicate confidentially with their home country,« says Anders Henriksen.
During the climate summit, the UN took over jurisdiction over Copenhagen’s Bella Center, the COP15 event venue. The two legal experts point out that Danish law remained in force at Bella Center.
«Due to the transfer of jurisdiction, Danish police could not arrest anyone at Bella Center without permission from the UN. But it would still be possible to prosecute in accordance with Danish law,« says Jørn Vestergaard. Or, as Anders Henriksen explains:
»The diplomatic protections do not suspend Danish law at a venue like Bella Center, but they do require Danish authorities to exercise their powers with respect for the protection afforded to diplomats under international law.«
Jørn Vestergaard points out that foreign intelligence services may operate legally on Danish soil if given explicit permission by the Danish Government.
»But that would allow PET (The Danish Security and Intelligence Service) to lawfully carry out the same operations, and then you have a whole set of rules that apply, primarily the code of civil procedure. And it's hard to imagine that PET would be allowed to spy at COP15, which really does not have much to do with national security.«
Only diplomatic sanctions
Jørn Vestergaard points out that NSA employees would not likely be prosecuted for spying against Denmark: »Traditionally, if spies are caught in the country while doing something illegal, they can be prosecuted, or diplomatic measures can be applied. But NSA employees would typically not be on site, because they work in places far from Denmark and spy via computers etc. Ultimately that leaves Denmark the only option of responding through diplomatic channels against a country like the United States, and it remains a political question whether Denmark wants to do that.«