magnify
Home Archive for category "Jurisdiction"

More on the UN and Surveillance and Privacy in the Digital Age

Published on April 17, 2014        Author: 

The Office of the High Commissioner for Human Rights is now conducting a consultation for the purpose of preparing the High Commissioner’s report pursuant to the UN General Assembly’s resolution on privacy in the digital age. Some of the major privacy/human rights NGOs have now made their submissions public: here is the paper submitted jointly by Privacy International, Access, Electronic Frontier Foundation, Article 19, Association for Progressive Communications, Human Rights Watch, and the World Wide Web Foundation; and here is the submission by the Center for Democracy and Technology. The NGOs argue, inter alia, that Article 17 ICCPR applies to (extraterritorial) surveillance activities and that the bulk collection of communications data is inherently disproportionate.

UPDATE: All of the submissions are now available on the OHCHR website.

Quoting verbatim from the GA’s resolution, the Human Rights Council has also decided to convene a panel on the right to privacy in the digital age at its 27th session, to be held in September. The multi-stakeholder panel is to discuss ‘the promotion and protection of the right to privacy in the digital age 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, also with a view to identifying challenges and best practices, taking into account the report of the United Nations High Commissioner for Human Rights requested by the General Assembly in its resolution 68/167.’

Readers may also recall that a few months ago I did a series of posts on human rights and foreign surveillance. I’ve since written up a more developed and expanded article based on that series, which takes into account developments as of March 2014, including the Koh memos and the concluding observations of the Human Rights Committee on the US fourth periodic report. The article will be published in the Harvard International Law Journal, and the draft is now available on SSRN. Comments are as always welcome; the abstract is below the fold.

Read the rest of this entry…

Print Friendly
 
Tags:

Azemi v. Serbia in the European Court of Human Rights: (Dis)continuity of Serbia’s De Jure Jurisdiction over Kosovo

Published on March 13, 2014        Author: 

Following the 2008 Kosovo Declaration of Independence and the change in public powers in Kosovo, Azemi v. Serbia was the first decision in which the ECtHR examined whether Serbia continued to have jurisdiction in Kosovo. The applicant, Ali Azemi, a national of Kosovo, alleged that Serbia had violated his rights under Article 6 (1) of the Convention by failing to enforce a decision rendered by a court in Kosovo in 2002. The applicant argued that Serbia bore responsibility for the enforcement of the Convention rights throughout its territory, including Kosovo.

On November 5, 2013, the ECtHR found that Serbia could not be held responsible under Article 1 of the Convention for the non-enforcement of a decision of a Kosovo court. The Court had previously sustained the presumption of Serbia’s de jure jurisdiction in Kosovo. However, in the Azemi case in examining the period after the Declaration of Independence it departed from that view by way of establishing the presumption of neutrality with regard to Kosovo.

Read the rest of this entry…

Print Friendly
 

Foreign Surveillance and Human Rights, Part 5: The Substance of an Extraterritorial Right to Privacy

Published on November 29, 2013        Author: 

This post is part of a series: Intro, Part 1, Part 2, Part 3, Part 4.

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).

Read the rest of this entry…

Print Friendly
 
Tags:

Foreign Surveillance and Human Rights, Part 4: Do Human Rights Treaties Apply to Extraterritorial Interferences with Privacy?

Published on November 28, 2013        Author: 

This post is part of a series: Intro, Part 1, Part 2, Part 3, Part 5.

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.

Read the rest of this entry…

Print Friendly
 
Tags:

Foreign Surveillance and Human Rights, Part 3: Models of Extraterritorial Application

Published on November 27, 2013        Author: 

This post is part of a series: Intro, Part 1, Part 2, Part 4, Part 5.

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).

Read the rest of this entry…

Print Friendly
 
Tags:

Foreign Surveillance and Human Rights, Part 2: Interpreting the ICCPR

Published on November 26, 2013        Author: 

This post is part of a series: Intro, Part 1, Part 3, Part 4, Part 5.

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.

Read the rest of this entry…

Print Friendly
 
Tags:

Foreign Surveillance and Human Rights, Part 1: Do Foreigners Deserve Privacy?

Published on November 25, 2013        Author: 

This post is part of a series: Intro, Part 2, Part 3, Part 4, Part 5.

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.

Read the rest of this entry…

Print Friendly
 
Tags:

Foreign Surveillance and Human Rights: Introduction

Published on November 25, 2013        Author: 

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.

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.

Print Friendly
 
Tags:

Interference-Based Jurisdiction Over Violations of the Right to Privacy

Published on November 21, 2013        Author: 

Carly NystCarly Nyst is Head of International Advocacy at Privacy International, a London-based human rights organisation.

The recent revelations of global surveillance practices have prompted a fundamental re-examination of the role and responsibility of States with respect to cross-border surveillance. The patchwork of secret spying programmes and intelligence-sharing agreements implemented by parties to the Five Eyes arrangement (the US, UK, Canada, Australia and New Zealand) constitutes an integrated global surveillance arrangement that covers the majority of the world’s communications.

At the heart of this arrangement are carefully constructed legal frameworks that provide differing levels of protections for internal versus external communications, or those relating to nationals versus non-nationals. These frameworks attempt to circumvent national constitutional or human rights protections governing interferences with the right to privacy of communications that, States purport, apply only to nationals or those within their territorial jurisdiction.

In doing so, the States not only defeat the spirit and purpose of international human rights instruments; they are in direct violation of their obligations under such instruments. Read the rest of this entry…

Print Friendly
 

The Extraterritorial Seizure of Individuals under International Law – The Case of al-Liby: Part II

Published on November 7, 2013        Author: 

In this second of two posts I intend to continue the analysis of the extraterritorial seizure of individuals under international law, with a particular focus upon the recent arrest, detention and now trial of the al-Qaida leader al-Liby by the United States, who was wanted in connection with the bombings of the US embassies in Kenya and Tanzania in 1998. In the previous post I addressed the prescriptive jurisdiction of the US over these offences and, noting that its enforcement was territorially limited, looked at two possibilities as to how enforcement may occur; the consent of the Libyan authorities and in self-defence. While the existence of the former would have justified the entering of Libyan territory, question marks still existed in connection with al-Liby’s human rights in such operations. This issue will be addressed in this post. By contrast, while it is at least possible that extraterritorial seizures could be justified as self-defence, the US has thus far failed to demonstrate that the Libyan authorities were unable or unwilling to apprehend and hand-over al-Liby to the US, instead basing the operation broadly upon the ‘laws of war’.  As such, whether this branch of the law permits such operations will be addressed first.

Arrest and detention as part of an armed conflict

Assuming here for the sake of argument that the US is in a state of war/armed conflict with al-Qaida, and similarly assuming for the sake of argument that given the absence of two state parties this is a non-international armed conflict per the ambiguous Hamdan judgment, the law of armed conflict says very little about powers of detention in such conflicts, as opposed to the rather extensive provision it makes for the issue (particularly in GCIII) in armed conflicts of an international nature.

It could be argued that there is a power of extrajudicial detention in non-international armed conflicts under customary international law. Indeed, this appears to be the view of the US and certain other states. Yet, the rules that do exist in the law of non-international armed conflicts governing detention are concerned with the general treatment and trial of individuals after they have been detained, as opposed to providing prior grounds for detention and thus ensuring that any deprivation of liberty is not of an arbitrary nature. Instead, such issues are left to the domestic law of the state where the non-international armed conflict is taking place and/or international human rights law. In this respect, regardless of whether the claim of the US in regards to its armed conflict with al-Qaida is well-founded or not, given the extraterritorial nature of the arrest and detention of al-Liby questions are raised as to whether, and if so how, international human rights law provides a form of regulation to the actions of the US. Read the rest of this entry…

Print Friendly