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Home Archive for category "Jurisdiction" (Page 9)

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

Published on November 6, 2013        Author: 

Chris_Henderson_150x200Christian Henderson is Senior Lecturer in Law and Director of the Human Rights and International Law Unit at the University of Liverpool.

On 5th October 2013, the US Army’s Delta force entered Libyan territory and seized the alleged al-Qaida leader Nazih Abdul-Hamed al-Ruqai (pictured right), more commonly known by his alias Abu Anas al-Liby, who was wanted by the US for the 1998 bombings of the US embassies in Kenya and Tanzania. The incident recently made the news again as al-Liby came before a Federal Court in New York to plead not guilty to the offences with which he was charged.

Anas_al-LibyUnsurprisingly, the US has made a robust defence of both the raid to seize al-Liby, including apparent invocation of the Authorisation for Use of Military Force (AUMF) adopted under the Bush administration (for an analysis of the use of AUMF see the post by Marty Lederman on Just Security here), as well as its current jurisdiction over him in order to bring him to justice for the bombings (see here and here).

Regardless of whether the abduction was lawful under the domestic law of the United States (see here for an excellent post on this issue) the whole operation raises several key questions under international law. In particular, this incident raises the question of the permissibility of a state entering another to apprehend an individual so as to be able to try them for crimes committed against its nationals. It also raises questions in regards to the treatment of that individual by the apprehending state and the subsequent jurisdiction over them for the alleged offences. The purpose of this and a following post is to seek to set out the framework of applicable rights and obligations in regards to such operations, with a particular focus on the al-Liby seizure. 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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The Role of the European Convention on Human Rights in the Wake of Kiobel

Published on July 25, 2013        Author: 

Jodie KirshnerJodie Adams Kirshner is the University Lecturer in Corporate Law at the University of Cambridge and a fellow of Peterhouse College, Cambridge. Her research concerns cross-border and comparative issues in corporate law. She contributed to an amicus brief to the U.S. Supreme Court in Kiobel in support of petitioners.

SCOTUSThe decision of the U.S. Supreme Court (photo credit) in Kiobel v. Royal Dutch Petroleum has generated concerns that a governance gap will emerge for corporations that commit human rights violations abroad. As American courts become less open to extraterritorial claims, however, recognition of the global context gains importance. The current climate presents opportunities for other judicial systems to step forward. Kiobel gives the European Court of Human Rights the occasion to interpret the European Convention on Human Rights to require the right to an extraterritorial forum and counterbalance the shift that has occurred in the United States.

Article 6 of the European Convention on Human Rights offers a potential pathway to jurisdiction over extraterritorial corporate human rights claims. The European Court of Human Rights (ECHR) has already interpreted Article 6 of the Convention broadly, and some national courts that are signatories to the Convention have suggested that the article could support extraterritorial jurisdiction. Article 6 guarantees the right to a fair trial. Subsection 1 states, “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. . . .”

The ECHR has encouraged an expansive reading of Article 6. In Delcourt v. Belgium (1970), 1 Eur. Ct. H.R. 355 (1993), the Court stated that “in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 (1) would not correspond to the aim and purpose of that provision.” It has also maintained that rights under the Convention must be “practical and effective and not theoretical and illusory.” (See, e.g., Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Artico v. Italy, 3 Eur. H.R. Rep. 1, para. 33 (1980); Mehmet Eren v. Turkey, Eur. Ct. H.R. App. No. 32347/02, 50 (2008).).

The ECHR (photo credit), furthermore, has held that, though the text does not expressly include one, the Convention encompasses a right of access to court. Read the rest of this entry…

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Jurisdictional and Immunity Issues in the Story of Enrica Lexie : A Case of Shoot & Scoot turns around!

Published on March 25, 2013        Author: 

Harisankar K S is Assistant Professor of Law, National Law University Jodhpur, Indiaharishankar

The Enrica Lexie incident (discussed by Douglas Guilfoyle here on EJIL:Talk! a year ago) has caused ripples not only in the political and diplomatic circles but also generated debates in the international legal community. The incident took place in the Arabian Sea on 15 February, 2012, when two Indian fishermen on board a fishing vessel (the “St Antony”) were killed by shots fired by two Italian marines on board the Italian oil tanker, the Enrika Lexie. The St Antony was approximately 20.5 nautical miles off the coast of Kerala, India when the incident occurred. The Italian ship continued sailing for almost three hours after the incident.  The Indian Coast Guard intercepted the Italian ship approximately 59 nautical miles and ordered it to navigate to the nearby Indian port of Kochi. There, the Italian marines were arrested and charged with murder under Sec.302 of the Indian Penal Code.

The following discussion highlights certain important developments in the legal arena, both domestic and international, in the context of criminal jurisdiction on high seas and immunities of state offiials. In addition, I suggest some possible outcomes of the case.

The Shooting  Incident

Prior to a discussion of Indian jurisdiction over the Italian marines for the shooting incident, there is a preliminary question as to whether India violated international law by engaging in the “Hot Pursuit” of the Italian ship? Read the rest of this entry…

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An Indian trial on Danish soil – an odd proposal in a somewhat bizarre case

Published on October 5, 2012        Author: 

Jacques Hartmann is Lecturer in Law, Dundee Law School, Scotland. Previouslyjoined the School of Law in September 2012. Prior to that he worked as a legal advisor at the Danish Ministry of Foreign Affairs

It is reported that India seeks to establish a tribunal at its embassy in Copenhagen to try a Danish national for conspiracy to wage war against the Indian Government. National trials in foreign countries are not without precedent. In 1999, after the Lockerbie case, two Libyan nationals were tried before an ad hoc Scottish court set up in a former US military base in the Netherlands. After the verdict in 2001, Professor Plachta in a piece in the European Journal of International Law (2001) questioned whether the case had opened the way to a neutral venue principle to solve future disputes involving the obligation of aut dedere aut judicare ). It has taken several years, but Plachta’s suggestion might be getting further support.

India has long been seeking the extradition of Niels Holck, a Danish national known in India by his alias ‘Kim Davy’. Holck is wanted for his involvement in the 1995 ‘Purulia arms drop’ where large quantities of weapons and explosives were dropped over the Purulia district of West Bengal in India. A British national and five Russians were subsequently arrested. Holck – the alleged mastermind of the operation – escaped. His co-accused were sentenced to life imprisonment. After pressure from their respective governments all six were later released (for UK parliamentary debate, see here).

India never relented in it efforts to bring Holck to justice. It first requested extradition in 2002. The request came after a major shake-up of the Danish extradition law following the events of 11 September 2001. Prior to this, Denmark would only extradite its nationals to other Nordic countries. Holck was one of the first Danes requested for extradition south of the border. Read the rest of this entry…

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