Introduction: The draft GA resolution on privacy on the Internet
The draft resolution reaffirms the human right to privacy. It calls upon states to take measures to put an end to violations of these rights (operative para. 4 b), calls upon states to review their procedures, practices and legislation concerning the extra-territorial surveillance of private communications (para. 4 b) and calls upon states to establish independent oversight mechanisms capable of ensuring the transparency and accountability of state surveillance of communications (para. 4 d).
Although the draft resolution does not mention the United States or the National Security Agency (NSA), it is indirectly reacting against the NSA’s recent espionage and surveillance activities conducted in a number of European states, including France, Italy, and Spain. This two-part post will focus on surveillance of German officials including the chancellor Angela Merkel and of ordinary persons in Germany by way of example. Spying on government officials concerns general international law, which will be the focus of Part I of this post. Part II will focus on the bugging of the communication of private persons, which implicates human rights law.
Breach of international law vis-à-vis the surveilled states
The interception of communication by government officials, agents, and authorities seems to constitute espionage. However, there are no specific international law norms that would contain or regulate espionage.
Spying has been more common (and more acceptable under international law) during war and under the international rules of armed conflict. If the United States seek to justify their surveillance activities by pointing to the “global war on terror” or, to use the term employed by former US legal adviser Harold Koh, “armed conflict with Al Qaeda, as well as the Taliban and associated forces”, the US would first have to show that there is indeed, in Germany, an armed conflict of this type. This seems difficult to demonstrate because the geographic and substantive nexus to the battlefield is lacking.
Despite the absence of an explicit prohibition, and although states have probably at all times attempted to gather information about other states by spying, it is not plausible to argue that espionage is, because everybody does it, allowed as a matter of customary international law. Even if there is practice, the opinio iuris is lacking. States do spy, but they are not opining that this is lawful under international law. Quite to the contrary, they are conscious that they are breaching international law. So which rules are potentially being violated?
State sovereignty, non-intervention and the prohibition on extraterritorial governmental acts
First of all, spying might constitute an intervention prohibited by international law. But the principle of non-intervention is generally deemed to be breached only if there is an element of “coercion”. This element is lacking, since the spying did not seek to pressure the observed states into specific behaviour.
Next, spying might simply infringe the principle of sovereign equality of states (Art. 2(1) UN Charter). “Westphalian sovereignty”, to borrow the term used by Stephen Krasner to describe one component of state sovereignty, essentially means state control over the domaine réservé. Communications among government officials which are not public belong to this domaine réservé. It is not the business of other states to gather information on political matters which another state seeks not to communicate. Even under a presumable general transparency obligation, states are not obliged to make all of their internal decision-making processes public, because this would completely stall politics. For this reason, extracting intra-governmental exchange of information seems to interfere with state sovereignty in its most traditional sense.
US governmental acts performed within the territory of other states might also violate the international legal principles on the allocation of state jurisdiction (which are, one could say, one facet of the principle of state sovereignty). Extraterritorial jurisdiction is permitted only if the situation sought to be dealt with by the US authorities has a sufficient jurisdictional link to the US. This link might be the obnoxious effect of suspected criminal acts on the United States, its armed forces, and its citizens. However, in the present case the potential damaging effects for the United States seem too remote to constitute “effects” in the sense of the international rules on state jurisdiction. The extraterritorial surveillance measures seem prima facie in breach of those principles.
Another general principle that might have been violated is the principle of good faith. The NATO Agreement is a treaty of alliance under which the parties have pledged to furnish “mutual aid” (Art. 3 NATO Treaty). Within such a regime, the principle of good faith which generally governs treaty relationships (Art. 26 VCLT) seems to be particularly important, and might even crystallise into a more specific obligation of loyalty towards the partners. Spying on the allies is all the more problematic from this perspective.
It is irrelevant when and to what extent the American President was informed about concrete bugging measures. All measures taken by US state organs are attributable to the state as an international legal subject and are apt to engage the state’s responsibility under international law, if the NSA or other official body entities breached an international obligation of the state (Art. 4 ILC Articles on state responsibility).
Consent by Germany?
The interference with state sovereignty, and the disregard of the prohibition to perform governmental acts in the territory of another state, can be justified by consent (Art. 20 ILC Articles on State Responsibility of 2001). Importantly, to preclude wrongfulness, the consent must be given prior to the act which would otherwise constitute a breach of international law. Also, the relevant action must be covered by (“within the limits of”) the consent.
As far as Germany is concerned, the state has in fact concluded, notably in the 1950s and 1960s, various international (and partly secret) treaties with the United States which have recently been brought to light by a German historian Joseph Foschepoth, Überwachtes Deutschland: Post- und Telefonüberwachung in der alten Bundesrepublik (Göttingen: Vandenhoek & Ruprecht 2d ed. 2013). These agreements might embody Germany’s prior consent to secret surveillance measures of the United States. One of them is the Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces with respect to Foreign Forces stationed in the Federal Republic of Germany of 3 August 1959.
The second relevant treaty seems to be the Verwaltungsvereinbarung zwischen der Regierung der Bundesrepublik Deutschland und der Regierung des Vereinigten Königreichs von Großbritannien und Nordirland zu dem Gesetz zu Artikel 10 des Grundgesetzes, of 28 October 1968 (reprinted in Foschepoth, Doc. No. 18c (p. 298)). The third is a note verbale of 1968 (Ablösung des alliierten Vorbehaltsrechts zur Überwachung des Post- und Fernmeldeverkehrs, Bestätigung der Verbalnote der US-Botschaft durch das Auswärtige Amt, dated 27 May 1968). This note confirms a “principle of international law” under which “any military commander is entitled to take, in the event of an immediate threat to his armed forces, the appropriate protective measures that are necessary to remove the danger.“ (This is my translation of the German text reprinted in Foschepoth, Doc. No. 18b, para. 6, p. 297-98).
So actually, this note verbale is in line with basic notions of fundamental rights (see on this below). It only allows for proportionate and necessary surveillance measures. Put differently, it does not consent to disproportionate and unnecessary measures. Also, these treaties cannot remove the wrongfulness of excessive surveillance measures to the extent that they give a kind of blanque cheque which can hardly be qualified as an “informed consent”.
Potential violations of human rights are a different matter. Governmental officials, including Chancellor Merkel, also enjoy the human right to privacy. Public persons must merely tolerate more intense restrictions due to their exposure to public life. But this is a distinction of degree only, not a categorical one. Part II of this post will address possible human rights violations arising from the NSA program.
*I thank Raffaela Kunz for speedy research assistance and all participants of the Monday meeting at the Max-Planck-Institute for Comparative Public Law and International Law for valuable input.