Snowden allegations of spying on EU must be taken very seriously
Intrusion would be a clear breach of the Vienna Convention of 1961
In any event, I do not understand the point of what the NSA was supposedly doing. The activities of the EU missions abroad, and of the Council of Ministers in Brussels, deal with subjects on which the facts are well known, and on which negotiating options are also fairly obvious. They can be easily discovered by US officials simply by asking. They do not involve sensitive questions concerning the security of the United States, which is supposed to be the concern of the NSA.
There will, occasionally, be commercially sensitive and confidential information shared with the EU mission in Washington by European or American companies, which might be useful to its competitors. Apart from the illegality involved, the NSA would have no legitimate reason to seek out, collect, or share that sort of commercial information.
I believe what is involved here is a case of a security bureaucracy extending its role, and engaging in “mission creep” just because it can, and because nobody is stopping it. The missions of agencies are often lazily defined, and open to multiple interpretations. That may well be the case with the NSA.
What should the EU do now? I will start by saying what it should not do.
It should not suspend talks of a possible trade and investment pact with the US. In fact, it should recognise that these allegations strengthen the EU’s hand in these negotiations, in the sense that the US now has to demonstrate its good faith.
Nor should it expect an early, full, or contrite admission from the United States of what might have happened, or make that a precondition for anything.
Instead, the EU should adopt a twin-track approach. It should continue with the trade and investment negotiations, as if nothing had happened.
But, simultaneously and separately, the EU and its member states should follow the example set by the United States itself in 1980, and take a case in regard to these allegations of breaches of the Vienna Convention, to the International Court of Justice in the Hague.
This assumes that the union can obtain sufficient documentary evidence of the Snowden allegations from Snowden, or from Der Spiegel. Pursuing a legal route would depoliticise the issue in the short term, and allow time for things to cool down.
Surveillance technology has advanced a great deal since 1961, when the convention was concluded. A new judgment from the international court in this case would be helpful.
It would re-establish and modernise the norms of behaviour we would want all countries to respect in future, notably emerging powers like China.
US president Barack Obama – who probably more than any previous president understands the significance of international law, and who wants to bring countries like China fully within its strictures – should welcome such a robust reaffirmation of the Vienna Convention.
John Bruton is a former EU ambassador to the United States