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Home EJIL Analysis Foreign Surveillance and Human Rights: Introduction

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.

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3 Responses

  1. Jordan

    In advance of the debate, the ICCPR applies universally (the U.S. Bush-Cheney claims were in serious error — see http://ssrn.com/abstract=1989099 ) However, those who have protections must be in the actual “power or effective control” of the U.S. with respect to U.S. obligations under the ICCPR. Moreover, on the merits, the right would be conditioned by the word “arbitrary.”

  2. […] as run e.g. by the NSA and GCHQ or the agencies of the other ‘Five Eyes’ countries" EJIL: Talk! – Foreign Surveillance and Human Rights: Introduction The past few weeks have seen increasing discussions of how human rights treaties might apply to […]