Snowden’s impact on ASEAN relations

Perspectives Internationales 26/05/2014 0

During the last two decades, the fight against serious transnational crime, including terrorism and organized crime, has acquired a global dimension. States have pooled their forces to coordinate their security policies in the framework of international and regional organisations and giving top priority to prevention[1]. For this purpose, States are increasingly cooperating together to improve the efficiency of their response.

Cooperation in security matters is characterised by an intensification and acceleration of the sharing of information, including sensitive information such as intelligence[2], among competent national authorities, especially regarding “actions or movements of [criminal] persons or networks; forged or falsified travel documents; traffic in arms; explosives or sensitive materials; use of communications technologies by terrorist groups and the threat posed by the possession of weapons of mass destruction by terrorist groups”[3]. States are taking part to a global run for more information, by all technical and technological means at their disposal, to prevent, detect, investigate and prosecute criminal activities.

Regional organisations attempt to implement and regulate this mechanism of intelligence and information sharing. The Association of South East Asian Nations (ASEAN) is no exception in this matter. Even though it is at the premises of the development of a security framework[4], member States seem to increasingly cooperate together especially in sharing intelligence and information. But the lack of trust between some States makes this sharing of information, and moreover those that are sensitive, more difficult.

Nevertheless, sharing information not only establishes networks and links between States, it also goes a long way in building trust based on principles of reciprocity and communications[5]. In fact, the condition of cooperation is usually linked to a promise of confidentiality. However, since the revelation of Edward Snowden on the mass surveillance carried out by the United States National Security Agency (NSA) over the world, this confidence has been severely eroded.

What does Edward Snowden really teach us?

Edward Snowden has leaked sensitive documents to the press exposing the global surveillance program of the NSA. These documents have revealed how extensively our private communications are being monitored; not only for investigation purposes, but also as part of a broad quest for intelligence.

However, does Snowden really revealed an unexpected secret? Not really. As in 1998, a report to the European Parliament already noted that all email, telephone and fax communications in Europe were routinely intercepted and different authors have already written on this issue. For instance, working with allies such as Singapore and with the world’s Internet traffic passing through the U.S. territory, the United States enjoys an unprecedented level of information superiority. The PRISM case only revealed two key points: (1) it has been realized that, with technologies evolving always further, States gather, retain, automatically process and use a lot of information often without control and at the expense of the right to privacy; (2) these security secrets can be revealed by anyone to everyone.

Will there be an after-Snowden? People perception apart, it is doubtful that this ‘security breach’ will change States’ practices, even within ASEAN where tensions still exist among member States. And do Snowden leaks threaten ASEAN intra-relations? At first glance, it could be answered positively but a realpolitik approach tends to prevail in ASEAN where member States face these revelations in a pragmatic way. In fact, two particular cases show the ASEAN-way to handle these revelations. Both cases involve different internal and external actors engaged in a different manner in the ASEAN and international relations. Taking this into account, this article aims at demonstrating how these cases that have given very different answers may be seen as a coherent approach in the development of a regional security framework.

The first example is the revelation that Singapore is massively intercepting telecommunications in Southeast Asia including both Indonesia and Malaysia and gathers data that are then shared with the United States. The second example is the targeted interception of telecommunications of Malaysian elites by Australia. In those two cases, the responses have been very different but denote a pragmatic approach of States in the field of international relations.

Singapore’s massive surveillance over ASEAN: a mitigated response

Among the documents, an extensive cooperation between the United States and Singapore is revealed regarding intelligence sharing. Singapore is accused of aiding the NSA to intercept international telecommunications including Internet ones in Southeast Asia where ASEAN member States are not spared.

Singapore is gathering data about communications passing through the major undersea cable called SEA-ME-WE3 that is part-owned by Singapore Telecommunications (SingTel). SingTel owns equity in a number of Asian Mobile networks including AIS Thailand, Telkomsel Indonesia (35%), Airtel Africa and South Asia, Globe Telecom in the Philippines. It connects more than thirty countries in total.

However, the centralisation of telecommunication networks lead to negative effects including surveillance that may be carried out by the State where such networks are managed. Indeed, the Security and Intelligence Division gathers and analyses information related to the national security of Singapore. In fact, Singapore spends about 10% of its Defense budget on gathering, processing and sharing intelligence annually – a percentage more or less in line with the U.S. budget. Nevertheless, its $1 billion USD budget remains less than 1/50th of what the U.S. spends on gathering and processing intelligence[6].

To gather all these data, it is using all technical and technological means at its disposal, including interception of telecommunication passing through its territory via the companies based in Singapore or information it may gather in Singapore Airlines and other regional airlines that are even said to be infiltrated by agents of SID[7]. In particular, as no judicial warrant is required to make phone taps and data interception, all telecommunications including SMS and Internet are closely monitored.

Nonetheless, the most topical aspect is that Singapore shares this information with ‘Western’ States. Indeed, Singapore is part of the Five Eyes program, which is an alliance of intelligence operations carried out under the United Kingdom – United States of America Agreement. This multilateral agreement gathers together the United Kingdom, the United States, Canada, Australia and New Zealand to cooperate in sharing intelligence and information.

To receive this information, States rely on surveillance and access to data gathered also by associated States, considered as allies, such as Singapore. In particular, the relationships among Singapore, Australia and the United States are indeed firmly embedded in the intelligence field.

This close cooperation was not known by the public[8], which has been rectified by Snowden’s documents. They have released information about this massive surveillance from an ASEAN member State over the other member States to external States. This massive surveillance can be seen as a real breach in the trust that is being built among member States[9]. In the absence of trust, developments to create a security community are facing a lower occurrence of cooperation, which is particularly problematic when attempting to move from commitments to real implementation of measures to develop mechanisms of intelligence and information sharing between member States.

In a context of strengthening cooperation against serious transnational crime in ASEAN, the main question is why Singapore is ready to compromise this relationship with other ASEAN member States? The answer is that it is necessary for its national interests as well as its national security. Singapore is unable to access so much data and to have such knowledge of the threats without these States. Therefore, it had to join with major powers. This is very convenient for the United States that practically cannot deal with all data gathered around the world. Having Singapore gathering and processing all data is its first reason to delegate to Singapore. Both Singapore and the United States seek to increase their own power capabilities, to secure their countries, in acting as such.

This massive surveillance by Singapore in ASEAN should have created a security dilemma, as it appears contrary to the regional interests and national sovereignty of the member States. However, it has not really been the case.

Two Muslim countries have been particularly monitored: Indonesia and Malaysia. Both States are very concerned that Singapore has been colluding with Australia and the United States with spying activities within their countries. Therefore, they required Singapore to give explanations about these documents. However, Singapore’s Defense Ministry and Ministry of Foreign Affairs have not answered to this request.

Although this revelation should have caused a serious diplomatic incident among ASEAN member States, the reactions of Indonesia and Malaysia have been subdued. This may be explained by two reasons: firstly, the United States and Singapore invest heavily both in Indonesia and Malaysia. For instance, Singaporean firms have invested 5,1 billion USD in Indonesia (or 26,3% of Indonesia’s Foreign Direct Investment) in 2011. Therefore, the latter knows that the benefits of good relationships in ASEAN far outweigh the costs of disputes. Secondly, governments around the world are aware of the fact that States cooperate together in order to gather always more information for security purposes. This particular case, especially regarding cooperation with the United States, is not a real surprise.

Serious transnational crime, including terrorism and organised crime, is considered to be a threat to the national integrity. Therefore, if the survival of the State is threatened by individual actors spread around the world, they often join their forces, establish alliances and seek to preserve their integrity and independence by identifying the power and the capabilities of this threat to prevent it. This mechanism of balance of power seeks to establish at least equilibrium between States and multitudes of potential un-identified enemies; or better, an advantage for the first ones.

Even so, the main public difficulty is more the fact of revealing such activities than the activities themselves. Indeed, there is no disagreement that intelligence services have an important function in protecting society against both internal and external threats. Because of the high level of secrecy inherent to intelligence services avoiding endangering on-going operations, revealing methods or putting at risk the lives of agents, their task may impede full transparency, public scrutiny and normal democratic or judicial examination.However, when it comes to these revelations, realistic reasons previously explained are not enough, understandable to people. Expressing its disapproval is a political imperative to regain the confidence of the population.

In this particular case of massive surveillance in Singapore, the concerned States have taken pragmatic position,, reducing the effect of these revelations on the ASEAN developments in framing a regional security framework. On the contrary, in the second case, the position is clearly not the same but we can still talk about pragmatic position.

Australian targeted surveillance on Indonesia’s elite: a strong response

On 18 November 2013, some Snowden’s documents also revealed that Australia’s intelligence services were intercepting the telecommunications of Indonesia’s Prime Minister, President Susilo Bambang Yudhoyono’s and other government elites[10]. This incident has escalated to such a strong extent mainly because of the answer of the Australian government facing these accusations. Australian Premier, Tony Abbott declared: “Australia should not be expected to apologise for the steps we take to protect our country now or in the past, any more than other governments should be expected to apologise for the similar steps that they have taken… Importantly, […] we use all our resources, including information, to help our friends and allies – not to harm them“[11].

Clearly, this revelation and the reaction of the Australian government have had a negative impact on the efforts Australia has done to strengthen relations with its Asian neighbors and especially on its cooperation with Indonesia. This even opens the door for China to expand its influence within ASEAN. According to Brad Nelson, in The Diplomat, Indonesia, with its leadership in ASEAN, is something of a diplomatic battleground for the United States and China[12]. Both States spend a considerable amount of time and money trying to get these States to lean their way. However, the diplomatic dispute between Australia, ally of the United States in this Eye Five Program, and Indonesia allows China to deepen ties in the State at the United States’ expenses.

In the aftermath, Indonesia has directly cut off cooperation by withdrawing its ambassador from Canberra and cutting off all joint security activities such as intelligence and information sharing. In particular, an Agreement Between the Republic of Malaysia and Australia on the Framework for Security Cooperation was signed in 2006[13]. It stipulates that in order to strengthen cooperation in the fight against terrorism, the two States should share intelligence and information. However, after having implemented these measures, the Indonesian government has called for negotiations for a new agreement. To do so, a review of the supervision and oversight of Australian intelligence services is even required. Therefore, it can be thought that these measures may be maintained until such a new agreement is reached.

The main question is why, in this present case, Indonesia has answered so differently to these revelations. Some reasons, among potential others, may be underlined. Firstly, the surveillance has been carried out over specific persons who are members of the government. They are not just ‘common people’, which increase the significance of the diplomatic breach. Secondly, the balance of powers is not the same than in the first case. In fact, Indonesia is more important to Australia than is Australia to Indonesia in security matters. In addition, Australia is also less important in world affairs. These elements can explain why Indonesia’s response is radically different in this particular case than it has been to the revelation of Singapore massive surveillance. Thirdly, the normative rules governing ASEAN interactions have traditionally been the respect for national sovereignty and non-interference in the domestic affairs of others[14]. Therefore, despite pre-existing tensions and security issues, the surveillance of Singapore over other member States is clearly a strong obstacle in the process of developing an ASEAN security framework, especially if this one is working with the United States. By contrast, the break in diplomatic and effective relations with an external actor such as Australia is not, when looking at the ASEAN priorities more specifically.

Finally, despite the difference of positions after these revelations of surveillance, Indonesia has acted pragmatically to both revelations. This kind of surveillance cannot be accepted but it also cannot always be prevented because of security and economic considerations. Nevertheless, in order to enhance and foster mutual trust among them, , States should not feel spied by their regional partners for the final purpose of sharing intelligence and information with a third one. This reduces the significance of the regional organisation when dealing with security issues, if one decides to cooperate more closely with a third State than with the other member States. In this context, a radical answer in the first case would jeopardize the stability and development of a regional security framework, whereas it is not the case in the second case. Hence, States within ASEAN, and especially Indonesia, have clearly adopted a realistic approach in the international relations to reach their aim: an effective regional security framework.

Framing an international compromise: towards a realistic response?

Considering all these revelations and the strong impact they may have on international relations, the United Nations has decided to take charge of this polemic. Thus, on 18 December 2013, the General Assembly has adopted the Resolution 68/167[15], which expresses deep concern at the negative impact that surveillance and interception of communications may have on human rights. In particular, it demands States to review their procedures, practices and legislation to comply with the international human rights requirements, including the protection of the right to privacy.

It is noteworthy that both Singapore and Indonesia have given inputs on the Resolution. First, Indonesia welcomes the human rights approach to the right to privacy, underlining its strong position against extraterritorial surveillance. By contrast, Singapore is rather choosier in its inputs: on the one hand, it considers that surveillance, generally, is legitimate for security purposes. Also, it considers that the legislations applicable in the country are properly complying with the resolution. On the other hand, it agrees with the necessity to ensure that communications service providers must respect the strict confidentiality of information they retain and that means of surveillance must be controlled by proper safeguards[16].

Taking into account this resolution and the knowledge of States regarding the surveillance the United States and its allies are executing around the world, it would be interesting to observe the potential new configuration of the relationships among ASEAN member States. ASEAN is working on the development of an effective security framework through the mechanism of intelligence and information sharing. In this context, these revelations and the reactions of States may finally not have a particular impact on this development but it may involve a parallel development of human rights protection (e.g. the recent enactment of the ASEAN Human Rights Declaration of 2013)[17].

Céline Cocq

Céline COCQ has obtained a Law degree (2005), a Master’s degree in International Humanitarian Law (2010), two University Diplomas in Criminology and Criminal Studies (2005 and 2011) and graduated a L.L.M. in International Public Law (2012) from the Center of International Law (Université Libre de Bruxelles, Belgium). She is currently a PhD candidate at the Legal Section of the Institut d’Etudes Européennes (U.L.B.) and a researcher on the SURVEILLE project. She is also a member of the ECLAN (European Criminal Law Academic Network) team.

Her research focuses mainly on substantive criminal law and criminal procedure at national and regional level, including the European Union and Association of South East Asian Nations, in order to conduct comparative analysis within and between regional organisations. For the purpose of the SURVEILLE project, she studies the use of surveillance technologies in these different legal frameworks. 

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[1] Security Council, S/RES/1368 (2001), United Nations (UN), 12 September 2001; Security Council Committee, Counter-Terrorism Committee, Policy guidance on international cooperation, S/AC.40/2010/PG.3, 14 June 2010.

[2] Intelligence refers to secret material collected by intelligence services and increasingly by specific law enforcement agent to provide background information and advance warning about people who are thought to be a risk to commit acts of terrorism or other threats to national security. See e.g. Kent Roach, “Secret evidence and its alternatives” in Aniceto Masferrer (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, Dordrecht, 2012). The concept of intelligence should be differentiated from that of information. The latter will be defined as the product of an official investigation carried out by law enforcement agencies after the commission of an offence or potentially in a proactive investigation.

[3] Art. 3(a) Security Council, S/RES/1373 (2001), UN, 28 September 2001

[4]Christopher B. Roberts, ASEAN Regionalism. Cooperation, values and institutionalization (Oxon, Routlegde, 2012).

[5] M. Anderson, “Trust and Police Co-operation” in M. Anderson and J. Apap (eds.), Police and Justice Co-operationand the New European Borders, The Hague, Kluwer Law International, 2002, pp. 35-46.

[6] TanTeck Toon, “Revelation of U.S.-Singapore Intelligence Cooperation Won’t Hurt Regional Ties”, 15 January 2014. Available athttp://www.internationalpolicydigest.org/2014/01/15/revelation-of-u-s-singapore-intelligence-cooperation-wont-hurt-regional-ties/ (accessed on 13 May 2014)

[7] Murray Hunter, “Is Singapore Western intelligence’s 6th eye in Asia? What are the Regional Foreign Policy Consequences”, 7 December 2013. Available at http://dissidentvoice.org/2013/12/is-singapore-western-intelligences-6th-eye-in-asia/ (accessed on 28 April 2014).

[8] Murray Hunter, “Is Singapore Western intelligence’s sixth eye in Asia?” Independent Australia, 13 December 2013. Available at http://www.independentaustralia.net/politics/politics-display/is-singapore-western-intelligences-sixth-eye-in-asia,5987 (accessed on 4 May 2014).

[9] Christopher B. Roberts, ASEAN Regionalism. Cooperation, values and institutionalization, op. cit., p. 23.

[10] Richard Tanter, “Indonesia, Australia and the Edward Snowden Legacy: Shifting assymetries of power” The Asia Pacific Journal, vol. 12, Issue 10, n°3. Available at http://www.japanfocus.org/-Richard-Tanter/4088 (accessed on 4 May 2014).

[11] Peter Hartcher, “Just between frenemies” The Sydney Morning Herald, 23 November 2013. Available at http://www.smh.com.au/federal-politics/political-opinion/just-between-frenemies-20131122-2y1f5.html (accessed on 5 May 2014).

[12] Brad Nelson, “Can Indonesia lead” The Diplomat, 5 December 2013. Available at http://thediplomat.com/2013/12/can-indonesia-lead-asean/1/ (accessed on 13 May 2014).

[13]Agreement Between the Republic of Indonesia and Australia on the Framework for Security Cooperation, November 2006. Available at https://www.dfat.gov.au/geo/indonesia/ind-aus-sec06.html (accessed on 5 May 2014).

[14] Kusuma Snitwongse, “Thirty Years of ASEAN: Achievements through Political Cooperation”, The Pacific Review, vol. 11, issue 2, 1998, p. 183.

[15] United Nations, The Right to Privacy in the Digital Age, Resolution adopted by the General Assembly, A/68/167, 18 December 2013. Available at http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/68/167 (accessed on 5 May 2014).

[16] Office of the High Commissioner for Human Rights (United Nations), Singapore’s inputs for the preparation of a report on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or the interception of digital communications and the collection of personal data, including on a mass scale, Geneva, 15 April 2014. Available at http://www.ohchr.org/Documents/Issues/Privacy/Singapore.pdf (accessed on 5 May 2014).

[17] ASEAN Human Rights Declaration and the Phnom Penh Statement on the adoption of the ASEAN Human Rights Declaration (AHRD), Jakarta, Indonesia, February 2013, p. 21.

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