Just a reminder to our readers that 15 January is the deadline for the submission of abstracts for the call for papers for the 10th anniversary conference of the European Society of International Law to be held in Vienna, 4-6 September 2014. Details regarding the call and the procedure can be found here.
Hassan v. United Kingdom, IHL and IHRL, and Other News in (Extra-)Territoriality and Shared Responsibility
Last week the Grand Chamber of the European Court of Human Rights held an oral hearing in what is bound to be a very important case, Hassan v. UK. The case deals with the detention of an Iraqi by British forces in southern Iraq and his subsequent release and death under unclear circumstances. As such it raises both threshold questions on extraterritorial applicability/Article 1 jurisdiction and substantive issues on the relationship between human rights and international humanitarian law. Here is the Court’s press release on the hearings, and here’s the actual webcast of the hearings. Shaheed Fatima also has a good preview of the case over at Just Security.
The jurisdiction issue is made more complicated by uncertainties left after Al-Skeini as to whether and when exactly the UK had effective overall control over southern Iraq for the purpose of spatial model of Article 1 jurisdiction, as well as by the fact that the camp to which Hassan was taken upon arrest was run by the US. The multiplicity of actors can thus render both the jurisdiction and the attribution questions more difficult. But I will not deal with them here. Rather, I want to focus on the interaction between the ECHR and IHL.
In that regard, together with the pending Georgia v. Russia interstate case, Hassan presents an excellent opportunity for the Court to articulate a clear and systematic approach on IHL. Hopefully this is an opportunity that the Court will take up, and the questions posed by the various judges during the oral hearing are an indication that they will do so.
Why is Hassan such a good case? Because at least in part it poses the hard question of potentially unavoidable norm conflict (a topic which I have dealt with extensively here, as well as specifically in the context of IHL and IHRL here). On the one hand, the UK is arguing that Hassan’s arrest and preventive security detention were authorized by IHL in an international armed conflict (the exact theory is for the time being beside the point). On the other hand, Article 5 ECHR categorically prohibits preventive security detention; unlike Article 9 ICCPR, which prohibits arbitrary deprivations of liberty, Article 5 ECHR contains an exhaustive list of permitted grounds for detention, and preventive security detention is not one of them. Hence, when states wanted to use internment in the context of internal disturbances or emergencies which may even have reached the level of non-international armed conflict, they had to derogate from Article 5 pursuant to Article 15 ECHR, as the UK did for Northern Ireland.
In the context of Hassan this raises the preliminary question of whether the UK could have derogated with respect to the situation in Iraq (which in any event it did not do), i.e. whether Article 15 ECHR allows for extraterritorial derogations. Article 15 limits derogations to times of ‘war or other public emergency threating the life of the nation.’ In Al-Jedda Lord Bingham expressed doubts that this formulation could extend to situations outside the derogating state, especially those which it had put itself in willingly, a sentiment later echoed by the UK Supreme Court in Smith. In other words, the UK chose to invade Iraq, and however bad the situation was for Iraqis in Iraq it in no meaningful way threatened the life of the UK. Further support for this position would be found in the fact that no state has ever derogated for an extraterritorial situation.
This is a quick reminder that December 1, 2013, is the deadline for applications for the Third Annual Junior Faculty Forum for International Law, which will be held at the University of Melbourne on July 7, 8 and 9, 2014. Regrettably, no applications can be received after this date, and full details of the application process and requirements are here: www.annualjuniorfacultyforumIL.org
Foreign Surveillance and Human Rights, Part 5: The Substance of an Extraterritorial Right to Privacy
Between Utopia and Apology, Universality and Effectiveness
My previous posts have all dealt with the threshold question of whether individuals subject to surveillance overseas should be entitled to human rights in the first place. This post will deal with the substance of the right to privacy in this context, if the right is found to apply. Though my main focus has been on the threshold question of extraterritorial application, and though that question is conceptually distinct from the substantive content of any given right, there is a direct connection as a matter of policy between the inquiries on jurisdiction and on the merits. The more difficult, complex or politically controversial the merits question of whether the substantive right has been violated, the greater the temptation to say that the right simply does not apply. Courts in particular frequently resort to dismissing cases in limine even while furtively casting an eye on the merits, in order to avoid grappling with the merits openly. One cannot really reduce arbitrariness in resolving threshold questions without looking at what the consequences of doing so would be down the line.
I have argued in that regard that the case law on the extraterritorial application of human rights treaties, particularly that of the European Court, straddles a Koskenniemian divide between universality and effectiveness. On one hand we want to follow the moral logic of universality and protect human beings no matter where they are located; on the other we see the enormous practical and political difficulties of doing so. An expansive approach to extraterritoriality can thus be criticized as utopian, as presenting a normative vision which has nothing to do with the real world, whereas a restrictive approach can be dismissed as pure apology for unbridled, arbitrary and limitless exercise of state power which we would never accept domestically.
A persuasive argument regarding the threshold of extraterritorial application hence must also look at the substance and attempt to strike a better balance between universality and effectiveness. It must provide states and courts with sufficient flexibility in the extraterritorial context and not impose unrealistic burdens and restrictions with which they could never comply. Resistance to extraterritorial application flows in large part from the fact that most human rights case law was built in times of normalcy, and the fear that applying this case law to external situations would be rigid and inflexible. However, most human rights, including privacy, analytically employ balancing tests that can be used less strictly if this is justified by the circumstances. (Compare this, for example, with the rigidity of the US Fourth Amendment warrant requirement for searches and seizures, which even in the domestic context leads to narrow interpretations of what is a search or seizure).
Foreign Surveillance and Human Rights, Part 4: Do Human Rights Treaties Apply to Extraterritorial Interferences with Privacy?
Bearing in mind the three models of extraterritorial application that I outlined in my previous post, the only model which provides an easy, clear answer is the third one. If the negative obligation to respect the right to privacy is territorially unlimited, then any interference with this right in any place in the world would implicate the ICCPR or the ECHR. This is not to say that such interferences, whether through a mass surveillance program or a targeted one, would necessarily be illegal. Rather, any such interference would need to be substantively justified within the analytical framework of human rights treaties (i.e. is the interference prescribed by law; does it serve a legitimate aim; is it proportionate to that aim). No threshold question of jurisdiction would arise, and just like with purely internal surveillance the analysis would need to be one on the merits. But again, this is also not to say that on the merits internal and external surveillance would need to be treated equally in every respect – more on this in my next, and final, post.
The third model provides a clear answer on the threshold question of applicability, but also one that is very broad and immediately leads to examination of the merits which carries with it its own uncertainties. This is precisely why the third model may not be appealing to those actors, be they governments, secret services, courts, or what have you, who would want to avoid the difficulties of a merits analysis or the constrains of human rights treaties altogether.
I will thus proceed to situate the following discussion within the confined of the more established spatial and personal models. But as soon as I do so, we will see how we run into uncertainty, complexity, and potential for arbitrariness. This is at least partly due to the fact that technological advances in obtaining information have rendered the exercise of manual, physical power over individuals unnecessary or less necessary. While privacy law in the information era frequently developed by analogy to old-school physical searches or interferences, be it in domestic systems (say under the Fourth Amendment to the US Constitution) or in international human rights law, there comes a point at which such analogies are no longer feasible or are outright misleading.
But such analogies can be a useful starting point. I will now outline some scenarios of possible interferences with privacy through searches, interception, or surveillance, starting with the more physical and ending with the most virtual. Under existing case law all of these actions by state agents against individuals could in principle count as interferences with their privacy rights under either the ECHR or the ICCPR if these actions were to occur on the state’s own territory. The problem I want to get at is jurisdiction, i.e. whether human rights treaties would apply in the first place if the state engaged in such conduct extraterritorially under either the spatial or the personal model, and whether distinctions should be made in terms of jurisdiction between the physical and the virtual methods of gathering information.
In this post I will provide a brief outline of the (often conflicting and confusing) case law on the meaning of the concept of state jurisdiction in human rights treaties. I will examine the spatial model of jurisdiction, which conceptualizes it as effective overall control of an area, the personal model of jurisdiction as authority and control over individuals, and a third model which distinguishes between the positive and negative obligations of states under human rights treaties. My next post will proceed to apply these models to several possible factual scenarios of overseas surveillance.
The European Court has produced by far the most case law on extraterritorial application, both in quantity and in variety. No case that I am aware of, however, deals directly with the question of extraterritorial application of the Convention to foreign searches, interceptions, or surveillance. The issue is thus one very much of first impression. The jurisprudence of the Human Rights Committee, on the other hand, is not as conflicting or contradictory, even if it is less varied. The Committee has also generally been more generous towards applicants than the European Court; unless I am mistaken, there is no case in which the Committee rejected the communication of a person who made an arguable case that his or her rights were violated extraterritorially on the grounds that this person was not subject to the jurisdiction of the relevant state. (The Committee’s generosity can be explained, in my view, by the fact that it does not necessarily need to live with the consequences of an expansive approach in the same way as the Strasbourg Court, where the stakes are higher because of the greater robustness of the regime and the binding nature of the Court’s decisions).
Comparing the ICCPR and the ECHR
The scope of many human rights treaties is at least partly determined by how we interpret their jurisdiction clauses, and here we can observe some important differences. I will limit myself in this analysis in looking solely at the ICCPR and the ECHR, the former because most states engaging in overseas surveillance will be parties to it (like the US), the latter because of the relative strength and influence of its enforcement mechanisms and the European Court of Human Rights’ extensive (and conflicting) jurisprudence on questions of territorial application.
Article 2(1) ICCPR provides that ‘[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,’ whereas Article 1 ECHR stipulates that the ‘High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ The main difference between the two provisions is the ICCPR’s reference to territory, but there is also the ICCPR’s distinction between the obligations to respect and to ensure, while the ECHR speaks of the obligation to respect in the heading of Article 1, but only of the obligation to secure in the actual text. (I will return to the distinction between positive and negative obligations later in this series). The magic word in both texts is (state) ‘jurisdiction’, but the question arises whether the ICCPR’s seemingly conjunctive reference to territory admits of any extraterritorial application, and if it does whether the interpretations of the ICCPR and the ECHR should align or not.
One robust feature of US legal discourse is an emphasis on citizenship as a basis for fundamental rights. This is true not only of case law (viz. the US Supreme Court’s holding in Verdugo-Urquidez, dealing with a search by US agents of a Mexican national’s property in Mexico, that non-resident aliens are not protected by the Fourth Amendment to the US Constitution), but also of public debate more generally, which frequently starts from the assumption that citizens naturally have constitutional rights, whereas foreigners do not. But while this kind of citizenship discourse is especially prominent in the US, it is by no means confined to it. Notably, the statutes regulating surveillance powers in all of the Five Eyes countries frequently make distinctions between eavesdropping on citizens (and perhaps permanent residents) versus non-citizens, as well as surveillance that takes place in or outside the state’s territory. Under these statutory frameworks non-citizens enjoy fewer protections than citizens, if they have any rights at all.
In order to assess its implication in international human rights law, we first need to look at the possible justifications for this citizenship-oriented approach. In contrast to arguments by David Cole (here and here) and Kenneth Roth in favour of a global human rights to privacy, Orin Kerr at Lawfare rightly points out that the citizenship-oriented approach stems from a different conception of government, one of ‘governments as having legitimacy because of the consent of the governed, which triggers rights and obligations to and from its citizens and those in its territorial borders.’ This is an essentially contractarian conception of the Constitution, which sees it as the manifestation of a social compact.
The past few weeks have seen increasing discussions of how human rights treaties might apply to mass electronic surveillance programs as run e.g. by the NSA and GCHQ or the agencies of the other ‘Five Eyes’ countries. Indeed, the already is or soon will be pending litigation challenging the compatibility of these programs with privacy guarantees under the relevant human rights treaties or under domestic constitutional law. Some of these cases are likely to proceed to an examination of the merits, particularly in Europe, where standing, state secrets and political question doctrines are either non-existent or are not as onerous for applicants to overcome as they are in the United States.
Similarly, the UN General Assembly is currently considering a proposed joint German-Brazilian resolution that would affirm the relevance of the right to privacy in the context of mass electronic surveillance (reports here and here). The draft resolution directly relies on Article 17 ICCPR, under which ‘[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’ The United States, on the other hand, is working hard to water down the text of the resolution, and is particularly anxious for the resolution to avoid affirming that the ICCPR applies extraterritorially. Apparently the US has actually managed to do so, but we will see what the final outcome will be.
This is the introduction to a series of posts on the application of human rights treaties to foreign surveillance. The main focus of the series is on the threshold question of whether human rights treaties would apply at all to extraterritorial interferences with privacy. The debate has a number of priors, so readers will forgive me (and be warned of) the number and length of the posts. The posts will go live during the course of the week.
- Part 1: Do Foreigners Deserve Privacy? will look at whether citizenship should be the normative basis for fundamental rights, including the right to privacy.
- Part 2: Interpreting the ICCPR will compare the jurisdiction clauses of the ECHR and the ICCPR, and critically evaluate the US position on the extraterritorial application of the ICCPR.
- Part 3: Models of Extraterritorial Application will examine the main strands of the case law of international human rights bodies, which conceptualize jurisdiction in human rights treaties as either effective overall control of territories or areas or as authority and control over individuals.
- Part 4: Do Human Rights Treaties Apply to Extraterritorial Interferences with Privacy? will apply the different models of jurisdiction to a number of possible factual scenarios of extraterritorial surveillance.
- Part 5: The Substance of an Extraterritorial Right to Privacy will look at what the right to privacy might substantively entail in the extraterritorial context, if it is indeed found to apply.
This series builds upon our previous coverage of these issues in two posts by Anne Peters (here and here) and last week’s post by Carly Nast of Privacy International. I will be updating the links to each post in the series as it goes live.
With the ICTY turning 20 this year, perhaps the time has come to pass judgment on it. Or is it judgement? (Preemptive note to readers – this post discusses trivia, and does not claim to engage in any legal analysis, let alone any serious analysis.) As an avid consumer of the ICTY’s case law, one thing has really been bugging me over the years, and the time has come to raise it openly (and no, it’s not the dubious acquittals of a number of bad guys who should have spent the remainder of their days in prison). What’s this, you ask? It’s how the ICTY persists in spelling ‘judgment’ as ‘judgement’ in all of its official documents, including, well, their judgments – so it’s the Blaskic judgement, the Perisic judgement, the Gotovina judgement. Oh, how I hate that, I really do.
Now you may ask yourself, come on, isn’t Marko overreacting (as usual)? Isn’t ‘judgment’ without an ‘e’ the American spelling, and ‘judgement’ with the ‘e’ the British spelling, and isn’t the ICTY just using the British variant? Wrong! Wrong, wrong, wrong. It’s true that in common usage in the US ‘judgment’ is used almost exclusively, while both ‘judgement’ and ‘judgment’ are used in the UK, with the former being more prevalent. However, in the British legal context the spelling ‘judgment’ is the conventional one and is used almost exclusively; thus the UK Supreme Court delivers judgments, not judgements. In other words, a proper, ‘public’ school and Oxbridge educated British lawyer would modestly write of himself as being indeed possessed of a fine and discerning judgement, but that today he read a jolly good judgment by Lady Hale or Lord Bingham or whoever. (For sources and discussions of the whole judgment/judgement thing, see here, here, here, and here).
I can thus only say that the ICTY’s use of ‘judgement’ to denote its own decisions is a complete and utter travesty (although I wouldn’t go so far, as I’m sure my friend Kevin Heller would, to label it as hypocrisy), since even British lawyers wouldn’t use that particular spelling in this particular context. More Catholic than the Pope, more English than the Queen, as it were. So how did this travesty get going?