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Home Human Rights Archive for category "Extraterritorial Application" (Page 10)

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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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…

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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…

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Surveillance without Borders: The Unlawfulness of the NSA Panopticon, Part II

Published on November 4, 2013        Author: 

This is Part II of a post assessing the international law implications of the U.S. National Security Agency’s global spying program. Part I focused the general international law implications of the program. This part focuses on potential violations of human rights law and breaches of the law of diplomacy.

Constitutional fundamental rights binding the European states

In probably all surveilled states, citizens enjoy a constitutional right to privacy which has been affected by secret surveillance measures by the NSA. Fundamental rights embodied in European constitutions bind only the territorial state, not the USA. The territorial states’ responsibility under their own constitutional law could be involved through their condonement, toleration, or by just refraining from protesting against surveillance measures by the NSA.

In Germany, the secrecy of communication is protected by Art. 10 of the German Basic Law (Grundgesetz, GG). This fundamental right may be lawfully restricted. The principal relevant legislation in Germany is the Gesetz zur Beschränkung des Brief-, Post und Fernmeldegeheimnisses as of 26 June 2001, colloquially called the G10-Act. This Act allows for measures to repel “dangers to the troops of the non-German contracting parties of the NATO treaty” (§ 1 of the G10-Act). That Act allows for different types of restrictions of the fundamental right to privacy, for example “strategic limitations”. But all restrictions are tied to specific conditions, for example, “concrete clues” must exist to found a “suspicion”. Also, the Act only authorises specific German agencies to perform surveillance measures, notably the German intelligence service (Bundesnachrichtendienst). Third, specific procedures must be respected. Finally, the affected persons must be informed ex post, and they are guaranteed access to non-judicial remedies. None of these preconditions have been met in the course of NSA-surveillance. It remains to be seen whether German authorities have violated citizens’ fundamental right to privacy by tolerating NSA measures. Read the rest of this entry…

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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. Read the rest of this entry…

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Better Get A Lawyer: Are Legal Constraints Defeating Britain’s Armed Forces on the Battlefield?

Published on October 25, 2013        Author: 

Aurel SariAurel Sari is a Lecturer in Law at the University of Exeter and an affiliated member of its Strategy and Security Institute.

Last Friday, the Policy Exchange, a British think tank dedicated to the development and promotion of new policy ideas, published a Report entitled ‘The Fog of Law: An Introduction to the Legal Erosion of British Fighting Power’. The Report makes fascinating reading and deserves serious attention. Written by Thomas Tugendhat and Laura Croft, its aim is to explain how the cumulative effect of legal developments taking place over the past decade has undermined the ability of Britain’s armed forces to operate effectively on the battlefield. The Report questions the desirability of what it calls ‘legal mission creep’ and offers seven policy recommendations designed to reverse it or at least arrest its future development.

Undermining the warfighting ethos

Flexibility, initiative and the acceptance of risk and responsibility are central to British military doctrine. As the British Defence Doctrine puts it, one of the key components of the ‘British way of war’ is ‘a style of command that promotes decentralised command, freedom and speed of action and initiative’. ‘The Fog of Law’ brings together a considerable body of examples to suggests that the growing legal regulation and civilian oversight of the armed forces—in particular the spread of inquiries, the extension of civilian duty of care standards and the constant threat of litigation—have begun to undermine the warfighting ethos of the military and restrict commanders’ freedom to act. A series of legal developments have contributed to this change. However, Tugendhat and Croft direct their fiercest criticism against the European Convention on Human Rights, which they describe as the ‘main weapon used in the legal challenge against the [UK Ministry of Defence]’ (p. 17). In their view, the extension of ‘a civilian understanding of duty of care and rights guaranteed by the ECHR’ to combat operations represents a ‘legal intrusion into decisions made in a time of war’ (p. 28).

It is important to stress that ‘The Fog of Law’ does not advocate the complete exemption of the armed forces from the rule of law. The Report makes abundantly clear Tugendhat and Croft’s view that the problem is not the imposition of legal constraints on the armed forces as such, but the extension of civilian law to the military. Indeed, their entire discussion seems to be predicated on an underlying assumption that civilian law and military law are distinct normative regimes and that their respective spheres of application can, and should, be neatly separated from one another. Civilian law and oversight are thus depicted as alien forces which ‘intrude’, ‘assault’ and ‘intervene’ into the military sphere, ‘encircling’ it and ‘encroaching’ upon its autonomy. This is the stuff of high drama, but the accuracy of the picture painted is open to question. The assumption that there is law for civilians and law for the military seems to mistake both the nature of the problem and its solution. Read the rest of this entry…

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On the Occasion of the Five-year Anniversary of the Russian-Georgian War: Is Georgia Occupied?

Published on October 1, 2013        Author: 

natia kalandarishviliNatia Kalandarishvili-Mueller is a Lecturer in Humanitarian Law at Tbilisi State University, Institute of International Law, Faculty of Law, and a PhD Candidate at the University of Essex, School of Law.

 

Five years have passed since war broke out between Russia and Georgia. The Independent International Fact Finding Mission on the Conflict in Georgia, established by the Council of the EU by decision of 2 December 2008, found that:

“On the night of 7 to 8 August 2008, a sustained Georgian artillery attack struck the town of Tskhinvali. Other movements of the Georgian armed forces targeting Tskhinvali and the surrounding areas were under way, and soon the fighting involved Russian, South Ossetian and Abkhaz military units and armed elements. It did not take long, however, before the Georgian advance into South Ossetia was stopped. In a counter-movement, Russian armed forces, covered by air strikes and by elements of its Black Sea fleet, penetrated deep into Georgia, cutting across the country’s main east-west road, reaching the port of Poti and stopping short of Georgia’s capital city, Tbilisi […] After five days of fighting, a ceasefire agreement was negotiated on 12 August 2008 between Russian President Dmitry Medvedev, Georgian President Mikheil Saakashvili and French President Nicolas Sarkozy…”. (pp. 10-11 of the Report)

However, the Russian Federation appears to be in violation of Point 5 of the Sarkozy peace plan, which had stipulated “the withdrawal of Russian military forces to the lines they held before hostilities broke out…”. What is more, on 26 August 2008 Russia recognized the independence and sovereignty of Georgia’s two breakaway regions, Abkhazia and South Ossetia.

This post examines the validity of Georgia’s contention that 20 percent of its territory is occupied by Russia. I first discuss the parties’ opposing positions and then assess the facts in light of the applicable law on military occupation. Read the rest of this entry…

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Aerial Herbicide Spraying Case Dead in the Air

Published on September 17, 2013        Author: 

The ICJ has just announced the removal from its list of the Aerial Herbicide Spraying (Ecuador v. Colombia) case (press release; order), which was consensually discontinued as the parties reached an agreement resolving their differences. The main issue in the case was that Colombia’s aerial hearbicide spraying of coca leaf plantations in Colombia (with the ample help of the US in the ‘war on drugs’) harmed the people and environment of Ecuador as in some cases the herbicide drifted accross the border. The 9 September 2013 Agreement:

establishes, inter alia, an exclusion zone, in which Colombia will not conduct aerial spraying operations, creates a Joint Commission to ensure that spraying operations outside that zone have not caused herbicides to drift into Ecuador and, so long as they have not, provides a mechanism for the gradual reduction in the width of the said zone; … sets out operational parameters for Colombia’s spraying programme, records the agreement of the two Governments to ongoing exchanges of information in that regard, and establishes a dispute settlement mechanism.

The case before the ICJ was well advanced, with the written pleadings already completed. While it is of course always a good thing that states are able to resolve their disputes peacefully, it’s to an extent a pity that the Court was not given the opportunity to decide this case, which could have been very important with regard to questions of transboundary harm. It even had one particular issue near and dear to my heart, as Ecuador alleged that Colombia was violating the human rights of Ecuadorians living accross the border, thus raising the issue of the extraterritorial application of the relevant human rights treaties (yet the Court was probably not going to rule on it anyway). Of note is also how the Court’s docket has recently shrunk rather signficantly, partly due to more (and welcome) efficiency and mostly due to a lower number of incoming cases.

UPDATE: But it seems the Court is getting a follow-up to the Nicaragua v. Colombia delimitation case. Lose some, win some.

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Dutch Supreme Court Affirms that Dutchbat Acted Unlawfully in Srebrenica

Published on September 8, 2013        Author: 

Tom Dannenbaum is a Visiting Lecturer in Law and Robina Foundation Human Rights Fellow at Yale Law School and a PhD candidate at Princeton University.

In a couple of posts in 2011, I discussed two nearly identical Hague Court of Appeal judgments on the liability of the Netherlands for the actions of Dutchbat at Srebrenica (see here and here). On Friday, the Dutch Supreme Court upheld both of those judgments. In what follows I’ll reference the Nuhanović decision.

The judgments are important on their own terms, but they are also significant in their implications for the Mothers of Srebrenica litigation against the Netherlands, particularly following the judgment of the European Court of Human Rights this summer upholding the Dutch courts’ acceptance of UN immunity in that context. Coincidentally, Dapo and Manuel Ventura posted on the ECtHR’s decision in Mothers of Srebrenica within minutes of the Dutch Supreme Court’s Nuhanović judgment. I connect back to their post below.

The Supreme Court affirmed the Court of Appeal’s strong approach to dual attribution, holding that it was possible that both the Netherlands and the UN had effective control over the same wrongful conduct and that attributing the conduct to the Netherlands did not in any way determine whether the UN also had effective control (such that it, too, could be attributed with the wrongdoing). (para 3.11.2). Relatedly, the Court also affirmed the power-to-prevent standard discussed in the second of my earlier posts (paras 3.11.3, 3.12.2, 3.12.3). I have advocated this standard at greater length elsewhere (here and here).

The aspect of Friday’s judgment that did the most work in going beyond the reasoning of the Court of Appeal was the Supreme Court’s discussion of extraterritoriality. It elaborated on two points in this respect (acknowledging explicitly that its discussion on this amounted to obiter dictum).

Read the rest of this entry…

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