tilburg law review 20 (2015) 58-77

brill.com/tilr

Development of Regional Legal Frameworks for

Intelligence and Information Sharing in the eu
and asean
Céline Cocq
PhD researcher, surveille project, Institut d’Etudes Européennes – Université
Libre de Bruxelles
celicocq@ulb.ac.be

Abstract

This paper studies the development of the institutional frameworks for cooperation in
the fight against terrorism in two regional organisations: the European Union and the
Association of South East Asian Nations. In particular, it will analyse the mechanism of
intelligence and information sharing developed at the regional level. First, it will assess
the different approaches and the mechanisms existing within the two regions and
highlight obstacles to such sharing: the willingness and ability of Member States. Then,
it will assess how these mechanisms fare in terms of human rights. The lack of real
protection of personal data constitutes a serious concern in connection with these
mechanisms of information sharing. Thus, the paper demonstrates that Member
States have started a global rush for information. Yet there are still many challenges to
overcome to improve the mechanisms of intelligence and information sharing them-
selves and to better protect human rights in doing so.

Keywords

intelligence and information sharing – terrorism – comparative regional security frame-

works – human rights – European Union – Association of South East Asian Nations

1 Introduction

During the last two decades the fight against terrorism has acquired a world-
wide dimension. States have pooled their forces to coordinate their counter-
terrorism policies in the framework of international or regional organisations

© koninklijke brill nv, leiden, 2015 | doi 10.1163/22112596-02001007

Development of regional legal frameworks 59

and have given top priority to prevention.1 In this context, States have resorted
to transnational mechanisms of cooperation, including intelligence and infor-
mation sharing.2
States are the primary actors in the adoption of anti-terrorism legislation
and policies.3 They have developed their arsenal to respond proactively to ter-
rorist threats, including by strengthening the powers of intelligence services to
obtain more information and knowledge on groups or individuals involved in
terrorism; boosting the wherewithal of law enforcement agencies in criminal
investigations; and introducing preventive coercive criminal powers.4
As no country and no region is completely immune from terrorist threats,
regional organisations have also attempted to create regional security frame-
works approximating national laws and organising cooperation among States.
Some organisations have gone further than others. To highlight the different
levels of development, this article will consider two regional organisations as
case studies: the European Union (eu) and the Association of Southeast Asian
Nations (asean). The choice of these two is motivated by, on the one hand,
their desire to use this mechanism in their fight against terrorism and, on the
other hand, the different levels of integration in security matters. If the eu can
be seen as one of the most integrated organisations in the field, asean is only
at the starting point of establishing a security community. Thus, these two
regional organisations, which have both experienced terrorist attacks very
recently, have evolved at different rates.
Effective and coherent intelligence and information sharing is possible
only if States agree on a common definition of terrorist offences. Remarkably,
the eu implemented a legal framework for combating terrorism including a

1 See eg United Nations Security Council (unsc) Res 1368 (12 September 2001) un Doc s/res/
1368; unsc ‘Counter-Terrorism Committee, Policy Guidance on International Cooperation’
(14 June 2010) un Doc S/ac.40/2010/pg.3.
2 Intelligence refers to secret material collected by intelligence services and increasingly by
specific law enforcement agents to provide background information and advance warning
about people who are thought to be a risk in the commission of terrorist acts or other threats
to national security (see eg K Roach, ‘Secret Evidence and Its Alternatives’ in AM Domingo
(ed), Post 9/11 and the State of Permanent Legal Emergency: Security and Human Rights in
Countering Terrorism (Ius Gentium: Comparative Perspectives on Law and Justice, Springer
2012) 180. It is distinguished from information referring to the result of an official investiga-
tion carried out by law enforcement agencies after the commission of an offence or poten-
tially during a proactive investigation.
3 See United Nations General Assembly (unga) Res 60/1 (24 October 2005) un Doc
S/res/60/1.
4 MFH Hirsch Ballin, Anticipative Criminal Investigation: Theory and Counterterrorism Practice
in the Netherlands and the United States (Springer 2012) 1.

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60 Cocq

definition of terrorist offences through the two Framework Decisions of 20025

and 20086 on the fight against terrorism. By contrast, after long unsuccessful
attempts to agree on a definition of terrorism at the international level, some
common - too general - characteristics were recently developed and highlighted,
but no binding legal definition has yet appeared.7 The unique instrument spe-
cific to terrorism is the asean Convention on Counter Terrorism which is unfor-
tunately only referring to international instruments with not further precision.
However, it shall have an impact on the fight against terrorism in the region.8
In the eu, transnational crime including terrorism played the role of cata-
lyst in developing cooperation among Member States.9 This cooperation has
been developing since the 1970s and the evolution of mechanisms of coopera-
tion has been quite impressive. Cooperation has evolved from intergovern-
mental mechanisms towards supranational cooperation. In this regard, the
abolition of checks at internal borders involved further integration of the
States in a regional response to internal and external criminal threats. While
opening the gates to travel within the eu, the 1985 Schengen Agreement also
created the opportunity for free movement of criminals including terrorists. In
addition, the technological innovations associated with globalisation have
enabled terrorist organisations to improve their capabilities, security, mobility
and coordination at the international level.10
In asean, cooperation in criminal matters developed later, in the second
half of the 1990s, but was also motivated by the increasing threat of trans­
national crime. This cooperation took the form of Declarations11 or Plans of

5 Council Framework Decision 2002/475/jha of 13 June 2002 on combating terrorism

[2002] oj L164.
6 Council Framework Decision 2008/919/jha of 28 November 2008 amending fd
2002/475/jha on combating terrorism [2008] oj L330/21.
7 Special Tribunal for Lebanon, ‘Interlocutory Decision on the Applicable Law: Terrorism,
Conspiracy, Homicide, Perpetration, Cumulative Charging’ (stl-11–01/I/ac/R176bis,
16 February 2011). Also M Williamson, Terrorism, War and International Law: The Legality
of the Use of Force Against Afghanistan in 2001 (Ashgate 2009); Anthony Aust, Handbook of
International Law (cup 2010) 265ff.
8 asean Convention on Counter Terrorism (adopted 13 January 2007), entered into force 27
May 2011) Art. II.
9 A Weyembergh, ‘La Coopération Pénale Européenne Face au Terrorisme: Rupture ou
Continuité?’ in K Bannelier and others (eds), Le Droit International Face au Terrorisme
(Pedone 2002) 279.
10 Edgar Pang (representative of Singapore) qualified terrorism as the ‘dark side of global-
ization’, see unga Sixth Committee (4th Meeting) (7 October 2005) un Doc ga/L/3276.
11 asean Declaration on Transnational Crime (adopted 20 December 1997); asean Manila
Declaration on the Prevention and Control of Transnational Crime (Manila Declaration)

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Development of regional legal frameworks 61

action.12 In the 2000s, treaties and conventions were adopted in the fields of
terrorism13 and of mutual legal assistance in criminal matters.14 From the point
of view of both their legal nature and their content, these instruments remain
of quite a traditional nature, very much representative of asean’s intergovern-
mental form.
The tendency to extend the powers of both intelligence services and law
enforcement agencies with regard to the sharing of intelligence and informa-
tion raises problems, especially regarding the protection of human rights.
Despite general statements about the need to improve intelligence and infor-
mation sharing, there is as yet little agreement on the nature of data shared or
on the level of protection of personal data that should apply.
On the one hand, it seems clear to all actors involved in the prevention and
investigation phases that intelligence and information are key elements in pre-
venting serious crimes from happening.15 The intensification and acceleration
in sharing this intelligence and information are considered to be the most
effective means of acquiring knowledge.16 In fact, States are taking part to a
global rush for ever more information, using all technical and technological
means at their disposal. On the other hand, this sharing may be dangerous
when it is not associated with a strong protection of human rights. It may
infringe rights, including the right to privacy, and may be used for purposes
other than the prevention and investigation of serious crime.
The eu is already involved in a variety of intelligence and information shar-
ing mechanisms, whereas asean is still at an early stage of such development,
even despite the fact that the United States considers Southeast Asia to be the
‘second front’ in the ‘global war on terrorism’.17 In parallel, the eu also has a

(adopted 25 March 1998); asean Declaration on Joint Action to Counter Terrorism

(adopted on 5 November 2001).
12 asean Plan of Action to Combat Transnational Crime (adopted 23 June 1999); asean
Comprehensive Plan of Action on Counter Terrorism (adopted 30 June 2009).
13 See (n 8).
14 asean Treaty on Mutual Legal Assistance in Criminal Matters (adopted 29 November 2004).
15 er Hertzberger, Counter-terrorism Intelligence Cooperation in the European Union (unicri
2007) 27.
16 unsc Res 1373 (28 September 2001) un Doc S/res/1373, Art. 3(a).
17 J Gershman, ‘Is Southeast Asia the Second Front?’ (2002) 81 Foreign Affairs 60; Woodrow
Wilson International Center for Scholars, ‘Asia Program Special Report: Fighting Terrorism
on the Southeast Asian Front’ (No 112, June 2003); DK Mauzy and BL Job, ‘u.s. Policy in
Southeast Asia: Limited Re-engagement After Years of Benign Neglect’, (2007) 47 Asian
Survey 622; ATH Tan, ‘Terrorism and Insurgency in Southeast Asia’ in ATH Tan (ed),
A Handbook of Terrorism and Insurgency in Southeast Asia (Edward Elgar Pub 2007) 3, 5.

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regional framework protecting human rights binding its Member States,

whereas asean has only very recently promulgated a declaration on human
rights. Thus, the sharing of intelligence and information should be possible
only when accompanied by a strong transnational protection of human rights.
This paper aims to highlight the gradual development of means by which
States share intelligence and information through the two regional organisa-
tions, and most importantly the different obstacles to this development. It
demonstrates in what way this mechanism of cooperation is a real challenge
as to its adoption and implementation but also its compliance with the con-
crete protection of human rights, including the right to privacy. Primarily, the
willingness (section  2) and the ability (section  3) of Member States of the
regional organisations may be either the driving force or the first obstacle to
the sharing of intelligence and information through regional mechanisms. It is
nevertheless certain that implementing these mechanisms has raised human
rights concerns, which may hinder balanced cooperation to combat terrorism
(section 4).

2 Building up a Trustful Environment to Share: Internal and External

Factors

Facing terrorist threats, States have together been at the forefront of the increase
in regional competences. The development of best practices, cooperation net-
works and mechanisms certainly leads to a regional legal framework, or at least
to common positions.18 However, if there was little difficulty in securing consen-
sus on the desirability of tackling serious transnational crime, decisions to
implement particular measures to reach this objective were often controversial.
The willingness of the States to share intelligence and information is influ-
enced by two elements: intra-regional and extra-regional. As regards the intra-
regional elements, differences may not be a very important obstacle in the eu,
where Member States mainly share cultural, religious and historical common
lines. By contrast, they are dominant in asean, where almost all States have
been colonised by Western States and have different cultures and traditions.
In the extra-regional elements, their external relations are certainly different
one from another.
In both the eu and asean, serious crime, including terrorism, has a clear
catalysing effect on the adoption of new methods of cooperation used by intel-
ligence services and law enforcement agencies for prevention and investigation

18 P Craig and G de Burca, eu Law: Text, Cases and Materials (5th edn, oup 2011) 946.

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Development of regional legal frameworks 63

purposes. Intelligence and information sharing is one of these methods.19 It

tends to be a prerequisite for States to ensure security in their countries and
within the region.20 At first sight, such an approach should lead to the strength-
ening of the regional legal framework21 fighting against terrorism. However, the
willingness of States to share information at the regional level varies signifi-
cantly between the eu and asean.
In the eu, there have been a number of internal factors which have over the
years influenced common action in criminal matters. One of these factors has
traditionally been the emergence of region-wide terrorist acts.22 A key element
of this recent development has been the establishment of mechanisms facili-
tating the gathering, exchange and analysis of personal data. Steps in this
direction have taken the form of initiatives aiming both at eliminating obsta-
cles to the sharing of personal data among national authorities, and at creating
eu-wide structures and databases.
The Trevi group is one of the first efforts, among a limited number of States,
to develop police cooperation in terrorist matters, including in sharing infor-
mation.23 Then, after some progress in gaining trust among States, a regional
security agency, Europol, was created. It aims at facilitating intelligence and
information sharing24 among eu Member States.25 This regional system is the

19 asean Declaration on Transnational Crime (n 11); asean Plan of Action to Combat

Transnational Crime (n 12); asean-us Joint Declaration for Cooperation to Combat
Terrorism (adopted 1 August 2002).
20 See unga International Convention for the Suppression of the Financing of Terrorism
(adopted 9 December 1999, entered into force 10 April 2002); un Convention against
Transnational Organized Crime (adopted 15 November 2000, entered into force
29 September 2003) unga Res A/res/55/25; un International Convention for the
Suppression of Acts of Nuclear Terrorism (adopted 13 April 2005, entered into force 7 July
2007); asean Convention on Counter Terrorism (n 8); asean Comprehensive Plan of
Action on Counter Terrorism (n 12).
21 ‘International law’ refers to international instruments, including un instruments, con-
cerning more than just the regional Member States, whereas ‘regional regulations/frame-
work’ relates to eu law and asean regulations.
22 Weyembergh (n 9); V Mitsilegas and others, The European Union and Internal Security
(Palgrave Macmillan 2003) 19–22.
23 First Trevi group meeting, 31 May 1977; see also G Renault, Schengen un Modèle pour
l’Europe Pénale? (Dossiers du Journal des Tribunaux no 6, Maison Larcier 1995) 28.
24 Europol has no control over the qualification of ‘information’. It may receive intelligence
considered as such in some States and not in others. The expression ‘exchange of informa-
tion’ by Europol should thus be understood broadly.
25 ec Convention Based on Article K.3 of the Treaty on European Union, on the Establishment
of a European Police Office (Europol Convention) (adopted 27 November 1995) oj C316,

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concrete manifestation of a common European project, and so of the willing-

ness of Member States to share intelligence and information about crimes
qualified as serious and transnational. Yet, there is still reluctances in several
eu Member States to share information considered sensitive in some coun-
tries and which cannot be used in their national courts whereas it can be in
others.26
By contrast, the asean territory is characterised by strong historical, politi-
cal and legal diversity and is still the scene of tensions and other security
issues. Sharing intelligence and information as a method of cooperation is so
difficult to establish and to make effective. This can mainly be explained by
the limited commitment of asean Member States depending on conceptions
of sovereignty.27 While asean has become an important regional grouping
in political and economical affairs, Member States retain independent legal
systems and legislation, and the sovereign right to determine internal and
external affairs, except in connection with mutually agreed cooperation
programmes. This is especially true in the field of counter-terrorism, as
States differ very much in their susceptibility to and experience of terrorism,
and hence it is extremely difficult to obtain an effective asean-wide response
to it.28
No particular institutionalized regional actor helps asean Member States
in their fight against terrorism. Unlike Europol, the Aseanapol is only a forum
for discussion which, through regular meetings between the asean chiefs of
Police, aims at harmonising and standardising coordination and communica-
tion mechanisms among police institutions.

Art. 3(1), 2; It is now based on Council Decision 2009/371/jha of 6 April 2009 establishing
the European Police Office (Europol) (adopted 15 May 2009) oj L121, Art. 5.
26 L Block, ‘eu Joint Investigation Teams: Political Ambitions and Police Practices’ in
S Hufnagel and others (eds), Cross-Border Law Enforcement. Regional Law Enforcement
Cooperation: European, Australian and Asia-Pacific Perspectives (Routledge 2011) 94.
27 See ssc Tay and TH Li, ‘Southeast Asian Cooperation on Anti-terrorism: The Dynamics
and Limits of Regional Responses’ in VV Ramraj and others (eds), Global Anti-Terrorism
Law and Policy (cup 2009) 400.
28 The iiss Asia Security Summit ‘Shangri-La Dialogue 2003’ (30 May – 1 June 2003)
R. O’Neill’s speech, Ong Keng Yong, National Security Australia Conference 2005, Sydney,
21 February 2005 <http://www.asean.org/resources/2012-02-10-08-47-56/speeches-state
ments-of-the-former-secretaries-general-of-asean/item/asean-s-contribution-to
-regional-efforts-in-counter-terrorism> accessed 4 September 2014. See also, LC Sebastian,
“The asean response to terrorism” Institute of Defence and Strategic Studies, unisci
Discussion Papers, May 2003; T Pimoljinda “Ethno-Cultural Diversity: A Challenging
Parameter for asean Regional Integration” icpm-2013, Atlantis Press, May 2013.

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Development of regional legal frameworks 65

Member States of both regions seem to agree on the idea of cooperating

together to combat terrorism, especially by increasing the sharing of intelli-
gence and information.29 However, the willingness of eu Member States to
adopt binding instruments influences the degree of information sharing.
Because, in asean, the protection of national sovereignty remains dominant
and the trust between Member States is still limited, the institutionalisation of
common cooperation has not yet reached a regional level.30
Both regional security frameworks have also evolved in relation to external
influences. Besides the un, collaboration with actors such as Interpol and
between the eu and asean themselves is increasing and may impact on the
development of regional cooperation.
Firstly, States share information, and potentially intelligence, within the
framework of an international organisation such as Interpol providing chan-
nels and databases.31 Interpol has developed a cutting-edge research and
development facility for the identification of crimes and criminals, innovative
training, operational support and partnerships. In particular, the Interpol
Office in Bangkok and the Global Complex being built in Singapore to increase
the Organisation’s presence in Asia are likely to allow closer collaboration
between Interpol and asean, including Aseanapol.32

29 Concerning the eu, see S Braum, ‘Are We Heading Towards a European Form of “Enemy
Criminal Law”? On the Compatibility of Jakob’s Conception of “An Enemy Criminal Law”
and European Criminal Law’, in F Galli and A Weyembergh (eds), eu Counter-terrorism
Offences: What Impact on National Legislation and Case Law? (iee, Editions de l’Université
de Bruxelles 2012) 238; Concerning asean, see R Emmers, ‘The Securitization of
Transnational Crime in asean’ (Institute of Defence and Strategic Studies Working Paper
No 39, 2002).
30 Eg between Singapore and Malaysia, disputes exist relating to the delivery of fresh water
to Singapore, the access of Singapore armed forces to Malaysian airspace, the sovereignty
of Pedra Branca and the relocation of Tanjong Pagar railway station; between Malaysia
and Indonesia, the dispute concerns the border on the island of Borneo as well as the
maritime boundaries along the length of the Strait of Malacca, in the South China Sea and
in the Celebes Sea.
31 ‘interpol Red Notice Subject Arrested in Security Operation During Southeast Asia
Games’ (interpol Press Release, Lyon, 23 December 2013) <http://www.interpol.int/
News-and-media/News/2013/PR157> accessed 14 January 2014.
32 ‘aseanapol Partnership with interpol Boosts Regional Security, interpol Chefs Tells
Laos Meeting’ (interpol Press Release, Vientiane, 31 May 2011) <http://www.interpol.int/
News-and-media/News-media-releases/2011/PR047> accessed 14 September 2013; ‘Interna­
tional Cooperation with aseanapol Bolsters Security Landscape, interpol Chief Tells
Police Meeting’ (interpol Press Release, Pattaya, 20 February 2013) <http://www.interpol
.int/News-and-media/News-media-releases/2013/PR019> accessed 14 September 2013.

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Secondly, partnerships have been created between the two regional organ-
isations. Commercial affairs and business have long dominated Asian-European
relations but “Asian and European policymakers are also steadily stepping up
their engagement on security issues.”33 asean bodies look at the European
Union’s experience in ensuring peace and easing tensions. Thus, in the increas-
ingly close relationship between the eu and asean on security issues, the eu
is seen not as a model of organisation to achieve but as a source of inspiration
for asean.34
However, external influences cannot be summed up by common and mutual
influences. asean, and its Member States, and the eu, and its Member States,
do not have the same relationships with, for example, China and the United
States. In fact, external States can adopt different policies towards these regions
and their Member States. In that respect, the eu and asean have experi-
mented with different external relations.35 Their international relations may
also have a role in the building up of regional confidence, especially if Member
States have different external policies dealing with intelligence and informa-
tion sharing.36

3 Different Degrees of Regional Integration: Factor of (in)Efficient

Cooperation?

The development of a regional framework of cooperation depends on regional

integration and the ability of the Member States and of the regional organisa-
tion to drive, implement and make compulsory mechanisms of cooperation.

33 S Islam, ‘Asia-Europe Increase Focus on Security’ (asem Infoboard 2013) <http://www

.aseminfoboard.org/featured-category/item/1262-asia-europe-increase-focus-on-security
.html> accessed 31 July 2013; eu European External Action Service, ‘Co-chairs’ Statement
of the 20th eu-asean Ministerial Meeting’ (Brussels, 23 July 2014) 140723/03.
34 Interview with V Muntabhorn (Commissioner on the Independent International Com­
mission of Inquiry on Syria), Brussels, 22 May 2013.
35 Regarding the eu, see rs Ross and others (eds), us-China-eu Relations. Managing the New
World Order (Routledge 2010); regarding asean, see M Caballero-Anthony, ‘Regional
Institutions and Regional Crisis in East Asia: Moving Away from the Comfort Zone?’ in
B Fort and D Webber (eds), Regional Integration in East Asia and Europe: Convergence Or
Divergence? (Routledge 2006) 265, and ‘Major Milestone in asean-China Relations’ in
S Siddique and S Kumar (eds), The 2nd asean Reader (Institute of Southeast Asian
Studies 2003) 427–429.
36 See eg C Cocq ‘Snowden’s Impact on asean Relations’ (Perspectives Internationales, May
2014), <http://perspectivesinternationales.com/?p=1092> accessed 27 August 2014.

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Development of regional legal frameworks 67

Efforts to increase the sharing have produced some positive results but have
also shown that, in many instances, national and international legal frame-
works are inadequate.37
Close cooperation in the sharing of intelligence and information among
competent authorities is encouraged by the United Nations to prevent terrorist
acts.38 For this purpose, States are to take effective measures, on the one hand,
to ‘enhance and, where necessary, to establish channels of communication
between their competent authorities, agencies and services in order to facili-
tate the secure and rapid exchange of information concerning all aspects of
the offences covered by [the un Convention against Transnational Organized
Crime]’ and, on the other hand, to facilitate effective coordination and to pro-
mote the exchange of personnel and experts, including the posting of liaison
officers.39
Regional organisations may provide a convenient framework for effectively
combatting terrorism.40 The eu and, more recently, asean have increasingly
focused on intelligence and information sharing. However, there is a striking
contrast between the advanced action achieved in the eu - comprising detailed
regulations and institutions devoted to the effectiveness of the security area -
and the use of mostly soft law instruments in asean. Political and historical
reasons may explain why European nations are likely to trust each other -
notwithstanding existing reluctances41 - and why asean nations jealously
maintain their national sovereignty.

37 United Nations Office on Drugs and Crime (unodc), Handbook on Criminal Justice Res­
ponses to Terrorism (Criminal Justice Handbook Series, un publication 2009) 52.
38 un Convention against Transnational Organized Crime (n 19). eu and asean Member
States are parties to the Convention (Thailand signed the Convention on 17 October 2013).
39 Ibid, Art. 27(1).
40 un Counter-Terrorism Centre, ‘Summary of Discussion’ (International Conference on
National and Regional Counter-Terrorism Strategies, Bogota, Colombia, 31 January – 1
February 2013).
41 Because of the sensitivity of data, States did not succeed in reaching an agreement on the
Framework Decision on the exchange of information under the principle of availability,
see Commission, ‘Proposal for a Council Framework Decision on the exchange of infor-
mation under the principle of availability’ com (2005) 490 final, initially proposed and
defined in the ‘Hague Programme’ on 5 November 2004. It means that information avail-
able to law enforcement agencies in one Member State should be made accessible to the
equivalent authorities in other Member States. On the principle of availability and lack of
trust, see T Bunyan, ‘The “Principle of availability”’ (Statewatch December 2006) <http://
www.statewatch.org/analyses/no-59-p-of-a-art.pdf> accessed on 30 August 2014, and
V Mitsilegas, eu Criminal Law (Hart publishing 2009) 257ff.

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Technologies and techniques are key elements in improving the exchange

and storage of data gathered. Their developments must be more effectively
shared. If technologies and techniques are developed and are made available
to States and regional organisations, their use depends on the level of regional
integration. The eu is clearly different from asean, and so is the level of coop-
eration achieved in the two regions. Some examples from each region high-
light these differences.
The eu has been developing a legal arsenal to allow and encourage States to
share intelligence and information.42 The idea of establishing some form of
cooperation among eu Member States to tackle transnational crime including
terrorism predates the 2000s attacks in the United States and Europe. As previ-
ously mentioned, the first move towards cooperation was taken in the 1970s,
with the Trevi group gathering together the European Community’s interior
and justice ministers who shared information.43 Trevi’s initial concern was to
address the transnational terrorism in Europe, also called “euroterrorism”.
States’ differences at first made transnational cooperation more complicated.
This is particularly noteworthy because even in a region where similarities
attempt to overcome differences, this process has taken time to reach the

42 See eg Council Decision 2005/671/jha of 20 September 2005 on the exchange of informa-

tion and cooperation concerning terrorist offences [2005] oj L253/22; Council Framework
Decision 2006/960/jha of 18 December 2006 on simplifying the exchange of information
and intelligence between law enforcement authorities of the Member States of the
European Union [2006] oj L386/89; Council Decision 2007/533/jha of 12 June 2007 on
the establishment, operation and use of the second generation Schengen Information
System (sis II) [2007] oj L205/63; Council Decision 2008/615/jha of 23 June 2008 on the
stepping up of cross-border cooperation, particularly in combating terrorism and cross-
border crime [2008] oj L210/1; Council Decision 2008/633/jha of 23 June 2008 concern-
ing access for consultation of the Visa Information System (vis) by designated authorities
of Member States and by Europol for the purposes of the prevention, detection and inves-
tigation of terrorist offences and of other serious criminal offences [2008] oj L218/129;
Council Decision 2009/934/jha of 30 November 2009 adopting the implementing rules
governing Europol’s relations with partners, including the exchange of personal data and
classified information [2009] oj L325/6.
43 First Trevi group meeting, 31 May 1977; after terrorist attacks in France, Karachi and
Istanbul, an emergency meeting of Trevi/Interior Ministers took place in London on
25–26 September 1986. It was decided to set up a secure fax system to provide an immedi-
ate system of gathering and sharing information among the 12 Member States police
forces; see T Bunyan, ‘Trevi, Europol and the European State’ in T Bunyan (ed),
Statewatching the New Europe (Statewatch 1993) 1.
R Genson, ‘How Far Do the New eu Counter-terrorism Offences Facilitate Police
Coopera­tion?’ in Galli and Weyembergh (n 29) 219–223.

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Development of regional legal frameworks 69

current level of cooperation. Knowing that in asean Member States’ histories

have been very different, it is logical that this same process should take even
more time. Hitherto, despite this obstacle, eu Member States’ services have
managed to cooperate and share information on the basis of their respective
national laws.44
Systems of cooperation were initially developed in Europe by sub-regional
agreements such as the Nordic Police Cooperation of 1972 and the Germany-
France Agreement of 1977. Then, the eu encouraged the States to enlarge their
cooperation to the regional level. In this respect, the Schengen Agreement was
first developed by and for a limited number of States and then integrated
throughout the eu through the Amsterdam Treaty. Thus, what is now called
the Schengen acquis45 has been the driving force for the development of the
sis (Schengen Information System) and then sis II. Moreover, the so-called
Swedish Framework Decision46 and the Prüm Convention47 strengthened the
tools of police cooperation and are fully applicable to terrorist offences. To
simplify these exchanges between competent national authorities, the Swedish
Framework Decision lays down the basic principles for the effective and expe-
ditious exchange of intelligence and information for the purpose of conduct-
ing criminal investigations or criminal intelligence operations. The Prüm
Treaty was the first convention, outside the eu legal order, to go further and
implement the availability of certain data.48 Like the Schengen acquis, the
Prüm Treaty has been included in the eu legal framework. It has been inte-
grated into Title VI of the eu Treaty, the “Third Pillar” devoted to police and

44 See eg D Casale, ‘Institutional and Legal Aspects of eu Counter-Terrorism’ in Centre of

Excellence Defence Against Terrorism (ed), Legal Aspects of Combating Terrorism (Nato
Science for Peace and Security Series E: Human and Societal Dynamics, ios Press 2008)
115; Weyembergh (n 9), 279–295.
45 The Schengen Acquis Convention implementing the Schengen Agreement of 14 June 1985
between the Governments of the States of the Benelux Economic Union, the Federal
Republic of Germany and the French Republic, On the Gradual Abolition of Checks at
Their Common Borders (adopted 19 June 1990) oj L239, Art. 9.
46 Council Framework Decision 2006/960/jha of 18 December 2006 on simplifying the
exchange of information and intelligence between law enforcement authorities of the
Member States of the European Union [2006] oj L386/89.
47 ec Prüm Convention (adopted 7 July 2005), Council Document no 10900/05 then incorpo-
rated into the eu legal order by the Council Decision 2008/616/jha of 23 June 2008 on the
stepping up of cross-border cooperation, particularly in combating terrorism and cross-
border crime [2008] oj L210/12, 1.
48 Ibid ec Prüm Convention, Arts. 2, 8. It did not mention the ‘principle of availability’ but
introduced the principles of the Convention with ‘the contracting Parties intend to step up
cross-border cooperation, particularly mutual exchange of information’ (emphasis added).

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judicial cooperation in criminal matters, which means that it now applies to all
Member States. It aims to improve the sharing of information for preventing
and combating crimes including terrorist offences at the regional level.49
In parallel with these inter-state cooperation mechanisms, the role and
function of Europol have improved by the development of intelligence
and information sharing relating to terrorist offences with both Member States
and Eurojust.50 Member States have the obligation to transmit data contained
in a certain number of criminal databases to both Europol and Eurojust.
Because of the development of these databases, of mechanisms of coopera-
tion and of the improvement of trust among Member States and between
Member States and Europol, the flow of information has been expanded.51
In asean, because security issues have undermined confidence and affected
the economy, tourism and investments,52 regional bodies recently also decided
to develop a set of instruments dealing with security issues. If the 9/11 terrorist
attacks had an impact on national security developments, Indonesia’s attacks
including the 2002 and 2005 suicide attacks in Bali and the 2009 bombings in
Jakarta have been the catalyst leading towards a regional security framework.
Since then, asean has attempted to develop a regional cooperation system
but, since it remains a regional intergovernmental organisation, relations
among Member States are still governed by conventional international law.
The corpus of instruments dealing with terrorism in asean predominantly
consists of non-binding instruments such as declarations and action plans, but
recently there has been the increasing adoption of binding instruments. Since
the 2001 asean Declaration on Joint Action to Counter Terrorism, terrorism
has become a challenge “to the attainment of peace, progress and prosperity of
asean and the realisation of asean vision 2020”.53 Research into sustainable
cooperation in combating terrorism54 resulted in the adoption in 2007 of a first
binding instrument specific to terrorism: the asean Convention on Counter
Terrorism (acct). However, unlike the eu, which has adopted a common

49 Hertzberger (n 15) 27.

50 Council Decision 2005/671/jha of 20 September 2005 on the exchange of information and
cooperation concerning terrorist offences [2005] oj L253/22.
51 See eg Europol, ‘Anniversary Publication: 10 Years of Europol 1999–2009’ (Europol publica-
tions, The Hague 2009) <https://www.europol.europa.eu/sites/default/files/publications/
anniversary-publication.pdf> accessed 17 July 2014; Mitsilegas (n 41) 165.
52 ‘Southeast Asia: Challenges in Creating an ‘asean Political-Security Community’ in
National Institute for Defense Studies (nids), East Asian Strategic Review 2012 (The Japan
Times 2012) 218.
53 asean Declaration on Joint Action to Counter Terrorism (n 11).
54 Ibid; asean Declaration on Transnational Crime (n 11) Art. 1.

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Development of regional legal frameworks 71

definition of terrorist offences, this Convention did not define what consti-
tutes a terrorist offence, but referred to international instruments.55 This Con­
vention has been into force since 11 January 2013, which means that it will take
time to be implemented by its Member States.
In parallel with the emergence of a legal framework against terrorism,
asean Member States had already agreed on methods of facing, more gener-
ally, criminal activities in a coherent and cooperative way.56 In particular, the
2004 Treaty on Mutual Legal Assistance in Criminal Matters signed by the
asean States57 aims at improving the effectiveness of cooperation and mutual
legal assistance among competent authorities in the prevention, investigation
and prosecution of offences.
In order to improve the effectiveness of such cooperation, asean has pri-
marily focused on intelligence sharing, coordinated policies and law enforce-
ment agencies’ exchange through multilateral partnership.58 At the regional
level, Member States are working on the establishment of databases to improve
cooperation between States.59 For instance, it would be interesting to observe
what would be the long-term outcome of the meetings of asean Chiefs of
police. They are currently working on the development of a common data-
base.60 Aseanapol is not a regional agency like Europol, but the development
of such a common database may be seen as a first step towards regional action.
Even if an agreement on a regional database - or at least a common database
between all Member States - has not yet been reached, some States have agreed
on a sub-regional mechanism of information sharing, i.e. the Agreement on
Information Exchange and Establishment of Communication Procedures
(2002) between the governments of the Philippines, Indonesia and Malaysia.61

55 asean Convention on Counter Terrorism (n 8) Art. II.

56 asean, asean Political Security Community Blueprint, asean Secretariat 2009; asean
Comprehensive Plan of Action on Counter Terrorism (n 12); Joint Declaration of the
asean Defence Ministers Strengthening Defence Cooperation of asean to Face New
Challenges (5th asean Defence Ministers’ Meeting in Jakarta, Indonesia 19 May 2011).
57 asean Treaty on Mutual Legal Assistance in Criminal Matters (n 14).
58 asean Declaration on Transnational Crime (n 11) para 4; it referred to the Naples Political
Declaration and Global Plan of Action of 23 November 1994.
59 asean Convention on Counter Terrorism (n 8); Comprehensive Action Plan of Action on
Counter Terrorism (n 12); S Pushpanathan, ‘asean Efforts to Combat Terrorism’ (asean
publications, 20 August 2003) <http://www.asean.org/resources/item/asean-efforts-to
-combat-terrorism-by-spushpanathan> accessed 29 August 2014.
60 asean Plan of Action to Combat Transnational Crime (n 12).
61 asean Agreement on Information Exchange and Establishment of Communication
Procedures (adopted 7 May 2002) Art. III.

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This is another aspect in which similarities with the eu developments in coop-

eration in criminal matters can be highlighted (e.g. with the Trevi group).
States are working through fora or institutional frameworks to improve
cooperation in criminal matters, including terrorism. They mainly focus, when
regulating, on the development of the means at the disposal of States and
regional bodies to allow more and more sharing of intelligence and informa-
tion. However, thinking about implementation is not possible if States are not
willing to share with others especially sensitive information. In this regard,
internal diversities and relationships certainly have an impact on the develop-
ment of the respective regional security frameworks, but so are the interna-
tional influences, some of which are similar or mutual, whereas others differ.

4 Necessary Transnational Protection of Human Rights: Challenges

and Perspectives

Intelligence and information sharing raises a number of concerns with regard

to the protection of human rights, including the right to privacy. As it is the
right most endangered by this mechanism of cooperation, this article focuses
on the protection of the right to privacy. In this respect, effective protection of
personal data is to be associated with intelligence and information sharing.
This protection, depending primarily on States, varies from one to another.
At the international level, it is only recently that the General Assembly
of the un adopted a resolution on ‘The right to privacy in the digital age’.62 It
condemns unlawful and arbitrary surveillance and/or interception of commu-
nications and other acts violating the right to privacy. However, it does not
provide for specific measures or obligations to States that are “called” to respect
and take measures to ensure the effective protection of this right. This declara-
tion of intent leaves a broad margin of appreciation, which is quite problem-
atic when States are increasingly sharing intelligence and information. The
absence of international consensus is an important gap that should be filled in
order to develop a sharing of intelligence and information that is consistent
with the protection of the right to privacy.
In this loose international framework, general concerns may be highlighted
before we go in depth into each region.
A first concern is related to the sharing, access and use of intelligence
by other Member States. National security aspects are particularly important
in the debates about the creation, implementation and development of

62 unga Res 68/167 (21 January 2014) un Doc A/res/68/167.

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Development of regional legal frameworks 73

databases or of channels of transfer of intelligence and information. There is

no debate on the usefulness of intelligence services in protecting democracies
against internal and external threats.63 However, full transparency, public
scrutiny and normal democratic or judicial examination are sensitive issues
because of the high level of secrecy intrinsic to intelligence services to avoid
endangering current operations, revealing methods or putting at risk the lives
of agents.64
Thus, there is an increasing gap between the significant cooperation
between States, on the one hand, and the oversight capacities limited to the
national level, on the other, which results in insufficient or ineffective demo-
cratic scrutiny.65 In fact, the degree of control and of effective oversight by
some Member States over their intelligence services is far too reduced in the
face of the mass surveillance often used for reasons other than national secu-
rity or the fight against terrorism (e.g. economic and industrial espionage or
profiling on political grounds). National legislations do not always have a Data
Protection Act and/or the same level of protection applicable to intelligence
and information sharing. This is also part of the diversity existing in the differ-
ent regions.
A second concern, closely related to the first one, deals with the purpose
of access to intelligence. It is true that the increasing of executive powers in
criminal investigations belongs to the logic of prevention.66 The prevention of
crime is dominated by executive powers that have the right to conduct secret
investigations. In the end, they can decide on the disclosure of intelligence to
other States,67 which depends on several political and legal factors. Firstly,
political trust among States must be reached. Disputes between two States
would certainly not lead to the disclosure of intelligence. This mistrust charac-
terised by an unwillingness to share intelligence is likely to happen more often

63 Not all asean Member States are defined as democratic. This issue is thus particularly
important in this region.
64 See D Cole and others (eds), Secrecy, National Security and the Vindication of Constitutional
Law (E. Edgar publishing 2013).
65 European Parliament (Committee on Civil Liberties (libe Committee), Justice and Home
Affairs), Draft Report on the us nsa Surveillance Programme, Surveillance Bodies in
Various Member States and Their Impact on eu Citizens’ Fundamental Rights and on
Transatlantic Cooperation in Justice and Home Affairs (2013/2188 (ini) 8 January 2014).
66 Eg about the United Kingdom, gs Goodwin-Gill, ‘Everyone and the Citizen: The
Devaluation of Principles and Protection’ in J Hocking and C Lewis (eds), Counter-
terrorism and the Post-Democratic State (Monash Studies in Global Movements, Edward
Elgar 2007) 101ff; about Germany, see P-A Albrecht, Kriminologie (3th edn, Beck 2010) 69ff.
67 Braum (n 29) 241.

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in asean than in the eu, even if it can be happening in the eu. Secondly, some
States legally prohibit the disclosure of intelligence in their own courts.
Therefore, the use of intelligence by the recipient State can also be forbidden
by the law of the sending State that first gathered the data or would be really
problematic, for instance, for investigation on-going in the sending State.
Like the development of mechanisms of intelligence and information shar-
ing, human rights protection is more developed in the eu than in asean. In
the eu, all counter-terrorism and human rights instruments are binding, while
only the counter-terrorism Convention is binding on asean Member States.
This Convention affirms in the preamble that States are committed to protect
human rights, and then in article XVIII states that international agreements
recognised by the States should be respected; this includes international
human rights instruments. In addition, the asean Human Rights Declaration
provides for principles which are politically but not legally binding on States.
More specifically, the eu is basically driven by the spirit and principles of
democracy, liberty, justice and solidarity.68 This does not prevent it from facing
problems when implementing the mechanism of intelligence and information
sharing.
This mechanism endangers rights and freedom protected at the regional
level. In particular, the right to privacy is promoted in several European and
international instruments, such as article 8 of the echr and more fundamen-
tally article 7 of the Charter of Fundamental rights of the European Union.69
The Charter is strictly an eu instrument leading to the justiciability of the
Member States before the Court of Justice of the European Union.70 By con-
trast, the echr is an independent convention and is binding on Member States
as States Parties. Despite this important difference, strong links between the
echr and the eu exist. In this regard, one may note in particular the project
of accession of the eu to the echr.71 eu Member States have a common stan-
dard to respect in sharing intelligence and information.

68 See (n 65) 7.
69 See eg National Research Council of the National Academies, Protecting Individual Privacy
in the Struggle Against Terrorist: A Framework for Program Assessment (National Academy
Press 2008); C Cocq and F Galli, ‘Comparative Law Paper on Data Retention Regulation in
a Sample of eu Member States’ (surveille Project D4.3, 30 April 2013).
70 See Charter of Fundamental Rights of the European Union (2010) oj C83/389, Art. 51;
Declaration concerning the Charter of Fundamental Rights of the European Union
(annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty
of Lisbon, signed 13 December 2007).
71 See Convention for the Protection of Human Rights and Fundamental

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Development of regional legal frameworks 75

Thus, the eu is subject to compliance with supranational human rights

standards. However major concerns have been raised especially about the pnr
agreements with the United States, requiring the transfer of European passen-
ger data.72 This agreement means that the eu shares in a one-way direction
personal data relating to travel dates, travel itineraries, ticket information,
contact details, travel agents through which flights were booked, means of
payment used, seat numbers and baggage information to companies for com-
mercial purposes and the United States for security purposes.73
It is certainly not part of intra-regional cooperation but it has an impact on
the level of protection the eu and its Member States are willing to apply in
sharing information with external States. It may be quite problematic if data
gathered in the eu are shared with such a low level of protection of the right to
privacy. The European Parliament recently condemned this agreement. It par-
ticularly stressed that privacy is the “foundation stone of a free and democratic
society” and that mass surveillance appears potentially to entail illegal actions
by intelligence services. Therefore, it invited national parliaments to adopt
effective oversights of intelligence activities by parliamentarians or expert
bodies with powers to investigate.74
For the same reasons, the European Commission’s proposal for an eu pnr
Directive75 was rejected by the European Parliament on 29 April 2013. The
objective would have been to transfer the pnr data of passengers on extra-eu
flights to and from Member States’ territories for the prevention, detection,
investigation and prosecution of terrorist offences and serious crime. These
data would have been shared between Member States.76 Despite this rejection,

Freedoms (European Convention on Human Rights, as amended) (echr) Art. 59(2);

Treaty on the European Union (Maastricht Treaty) Art. 6(2). See also Council of Europe,
‘Fifth Negotiation Meeting between the cddh ad hoc Negotiation Group and the
European Commission on the Accession of the European Union to the Convention on
Human Rights’ (Final report, 47+1(2013)008, 3–5 April 2013).
72 Council Decision 2012/471/eu of 13 December 2011on the signing, on behalf of the Union,
of the Agreement between the United States of America and the European Union on the
use and transfer of Passenger Name Records to the United Department of Homeland
Security [2011] oj L215/1.
73 Annex to the Agreement between the United States of America and the European Union
on the use and transfer of Passenger Name Records to the United States Department of
Homeland Security [2012] oj L215/5.
74 See (n 65) 25.
75 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on
the use of Passenger Name Record Data for the Prevention, Detection, Investigation and
Prosecution of Terrorist Offences and Serious Crime’ com (2011) 32 final.
76 Ibid, Art. 7.

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the libe Committee asked that the proposal be reconsidered.77 New negotia-
tions are in train and there are expectations of more protection of privacy.
In asean, maintaining a harmonious balance between security and the
protection of human rights is a real challenge. No instrument dealing with
security issues also pays attention to the protection of human rights. Only the
acct specifies that terrorism should not be associated with any religion,
nationality, civilisation and ethnic group, protecting people from coercive dis-
criminatory measures.78 Moreover, asean does not have supranational instru-
ments of human rights protection analogous to those existing in the eu.
A noteworthy step was the establishment in 2009 of an asean Inter­
governmental Commission on Human Rights (aichr). This was followed by
the recent adoption in 2013 of the Declaration on Human Rights.79 However, if
security involves the adoption of binding acts, human rights seem to require
only principles. States reach an agreement on security issues more easily than
on standards of protection of human rights.80 In addition, the aichr uses soft
methods, in organising series of consultations to assess its work and to gather
inputs from stakeholders. For now, human rights protection and counter-
terrorism activities seem to be developing in parallel without real interaction.
It remains to be seen whether developments in the area of regional human
rights protection in asean will work as constraints on intelligence and infor-
mation sharing.
In conclusion, the lack of adequate national, regional and international
binding frameworks to protect the privacy of individuals involved while sup-
porting lawful and effective data sharing is very worrying and, to remedy this
issue, transnational standards of protection of human rights must accompany
the transnational sharing of intelligence and information.81 If national secu-
rity seems to outweigh concern for human rights, a tack in the opposite

77 Statewatch, ‘Observatory eu-pnr(Passenger Name Record: 2011 ongoing’ <http://www

.statewatch.org/Targeted-issues/eu-pnr/eu-pnr-observatory.htm> accessed 27 March
2014.
78 See (n 8) Preamble.
79 asean Human Rights Declaration and the Phnom Penh Statement on the adoption of the
asean Human Rights Declaration (adopted 18 November 2012); See also International
Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force
23 March 1976) 999 unts 171 (iccpr) Art. 21.
80 A Acharya, Constructing a Security Community in Southeast Asia: asean and the Problem
of Regional Order (Politics in Asia, 2nd edn, Routledge 2009).
81 unodc (n 37) 66. See also K Lachmayer, ‘Rethinking Privacy Across Borders: Developing
Transnational Rights on Data Privacy’ in this Special Issue.

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direction seems to have begun, thanks notably to the European Parliament

and the ecj.82

5 Conclusion

Intelligence and information sharing is a significant mechanism used by States

and increasingly framed at the regional level, or at least through intra-regional
cooperation. This article aimed nevertheless to highlight the challenges still to
be overcome in developing this mechanism.
First, potential lack of trust between Member States can lead to an unwill-
ingness by States to share information and, even more so, intelligence, and so
to the mechanism’s lack of efficacy. Even if this aspect seems to be resolved in
the eu, discussions are still current especially at the regional level between
Europol and Eurojust. Facing these strong concerns, Member States and even
the eu agencies are working together to share not only intelligence and infor-
mation but also best practices.83
Second, the institutional developments making this mechanism effective
are more noteworthy in asean. Yet eu Member States are also discussing more
effective techniques and technologies.
Third, and probably most important, the imbalance between security and
the protection of human rights is going to dominate future discussions on the
development of techniques and technologies for sharing intelligence and
information for security purposes (in the broad meaning of the term).
Finally, it is important for States to establish and agree on the final purpose of
this exponential intelligence and information sharing to answer these concerns.
Do States really want to share both intelligence and information only for preven-
tion and investigation purposes or do they want them to be used as evidence?
The answer will lead to different regional developments of this mechanism.

82 See the very recent decision of the European Court of Justice (Grand Chamber), Joined
Cases C-293/12 and 594/12 Digital Rights Ireland and Seitlinger and Others [2014]
ecli:eu:C:2014:238. The Court declared the Data Retention Directive to be invalid. It
entails a wide-ranging and serious interference by the directive with fundamental rights
which is not sufficiently circumscribed to ensure that that interference is limited to what
is strictly necessary. See also A Vedaschi and V Lubello, ‘Data Retention and Its Implications
for the Fundamental Right to Privacy: A European Perspective’ in this Special Issue.
83 B De Buck, ‘Cooperation and information exchange between Europol and Eurojust’ and
V Jamin, ‘Operational aspect of the relation between Europol and Eurojust: day-to-day
concrete cooperation and shortcomings’ (eclan Conference on the Relationship between
Europol and Eurojust: State of the Art and Future Prospects in Brussels, 12 February 2014).

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