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Home EJIL Analysis Surveillance Without Borders? The Unlawfulness of the NSA-Panopticon, Part I

Surveillance Without Borders? The Unlawfulness of the NSA-Panopticon, Part I

Published on November 1, 2013        Author: 

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Introduction: The draft GA resolution on privacy on the Internet

At the end of October 2013, a draft General Assembly resolution calling for the right to privacy on the Internet was sponsored by Brazil and Germany. (photo: a panopticon, credit)

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.

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5 Responses

  1. RJ

    excellent post. To me, however, it seems that espionage and surveillance measures cannot but be outside the real of law. Constructing a violation of good faith sounds a bit far-fetched. And what about non-Nato states? Is the only legal basis they have indeed the principle of state sovereignty in the traditional sense? And what about our old friend customary international law? We are permanently abusing this source, why not try to abuse it here as well and think of some custom on espionage and surveillance? Or, on the contrary, could it be that states have implicitly agreed and consented to the fact that acts such as those performed by the NSA have always, and will always, be a regular part of international affairs?

  2. RJ

    realm, not real. Sorry for the typo.

  3. André de Hoogh

    Anne, a few observations.

    First, your reference to the domaine réservé is somewhat odd. Is the US arguing that Germany must make public its internal, official communication? I doubt that very much and, as you point out, there are no rules of international law requiring Germany to do so (though one may consider the text of article 19(2) ICCPR, which is however formulated as a right of individuals). US action with respect to such official communication may therefore be considered interference into domestic affairs, but still lacks as you note the element of coercion that, as the ICJ put it in the Nicaragua case, defines and forms the very essence of a “prohibited intervention” (Merits, para. 205). Rather the question should be whether the US actions are within the domestic jurisdiction of the US. Since there is no specific, prohibitive rule against spying as such, as you note astutely, only the application of other rules of international law may offer insight.

    Second, you make a claim that what the US does constitutes an exercise of extraterritorial jurisdiction. However, a preliminary question would be what the US has ‘actually’ done. You indicate that the US has engaged in surveillance of Germany officials and chancellor Merkel, but how exactly has it engaged in this surveillance? Other reports indicate that the US may have tapped mobile phones, but again my question is: how? Has it placed bugs inside such phones? Or has it eavesdropped such communication over airwaves? If so, from where is it listening in? Or again has it used recordings available in hardware, such as servers or satellites? The means are important because not every action can be seen as an ‘extraterritorial’ exercise of jurisdiction. If the US simply mines the data available on servers present on US territory or in US controlled satellites, this will ‘merely’ constitute an exercise of territorial jurisdiction.

    Third, the perceived wisdom is that the principle of good faith does not transform something non-binding into something binding, or perhaps more particularly, as the ICJ stated in Nicaragua v. Honduras (1988), “it is not in itself a source of obligation where none would otherwise exist” (para. 94). Therefore any obligation of loyalty cannot be directly based on good faith, but must have a source in either the NATO treaty or in customary international law.

  4. Jordan

    Anne: as Andre notes in part, there can be questions of fact that may be relevant to conclusions to be made regarding issues such as is a matter merely the affair “of” a particular state, does prescriptive jurisdiction under customary international law pertain (such as protective, objective territorial, and universal jurisdiction), what is an “arbitrary” “interference with” “privacy” under Article 17(1) of the ICCPR, what does the term “unlawful” cover under the same Article, although human rights law applies globally (e.g., UN arts. 55(c), 56; ICCPR preamble) when is a person within the actual “power or effective control” of the United States in cases involving “spying”? Of course, “effective control” is the test recognized by the H.r. Comm. under the auspices of the ICCPR (and even the CAT Comm. re: the reach of the CAT).
    In any event, I hope that the Obama Administration has abandoned the nonsense claims of the Bush_Cheney regime, for example, that human rights obligations do not apply outside the U.S., that putative reservations to the ICCPR (and CAT) regarding merely U.S. Constitutional protections apply [they are actually void ab initio as a matter of law is putative reservations and were phrased as understandings that are, in law, patently in error), that alleged necessity provides an excuse [although I note that Article 17 of the ICCPR is derogable, but the U.S. has not claimed derogation], and that war obviates the relevance of human rights law [for evidence of these and other false claims of the Bush-Cheney regime see, e.g., http://ssrn.com/abstract=1989009 ]
    And you are correct to challenge the notion that the U.S. can be “at war” with al Qaeda or other groups that do not meet tests for insurgent status.

  5. Jordan

    oops, a few typos plus the wrong click-on — try
    http://ssrn.com/abstract=1989099 for the Bush-Cheney 9 false claims and the universal reach of human rights law.