In light of recent “revelations” that the NSA–like its counterpart espionage agencies around the globe–engages in surveillance of many people overseas, a rich debate has sprung up here and on Lawfare — with numerous posts by David Cole, Ashley Deeks, Orin Kerr, Ben Wittes and others — about whether there is or ought to be an extraterritorial “right to privacy” (that is, a right vis-a-vis the surveillance of other nations) and, if so, what that right might consist of. This blog discussion tracks a more widespread international debate now percolating about whether international espionage–which has traditionally been dealt with primarily by (rarely enforced) laws of the host countries–ought to be subject to greater international law regulation.
The debate shows no signs of abating, in light of the daily reports that keep trickling out thanks to Edward Snowden. In today’s paper, for instance, Canadian opposition politicians are reported to have “expressed shock and anger on Thursday” over a report that the NSA, in “close coordinat[ion] with the Canadian partner,” “conducted widespread surveillance during a summit meeting of world leaders in Canada in June 2010.” NSA’s response to the story is, not surprisingly, that “the U.S. government has made clear that the United States gathers foreign intelligence of the type gathered by all nations.”
Should international law regulate such spycraft? Should human rights treaties be construed to already do so?
Now, along comes Marko Milanovic of the University of Nottingham School of Law (and, this semester, visiting at Michigan Law School), with a five-part post on these questions over on EJIL Talk! I highly recommend it to those interested in this topic. Marko is as good as it gets on the subject of the extraterritorial effect of human rights treaties–I’ve found his monograph/dissertation on the subject to be indispensable.
In his five-part series he doesn’t pretend that the answers are easy, or uncontested, or lurking in the words of the relevant treaties if only we search hard enough. Instead, he asks all the right questions, and provides a useful framework for thinking about them. Marko situates the extraterritorial privacy question within a much broader, recent debate about the extraterritorial effect of human rights, and offers an incisive account of how that debate might be extended to the question of the “right to privacy” in the years to come.
Here’s his intro to the posts:
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, there 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.
Part 1: Do Foreigners Deserve Privacy? look[s] at whether citizenship should be the normative basis for fundamental rights, including the right to privacy.
Part 2: Interpreting the ICCPR compare[s] the jurisdiction clauses of the ECHR and the ICCPR, and critically evaluate[s] the US position on the extraterritorial application of the ICCPR.
Part 3: Models of Extraterritorial Application examine[s] the main strands of the case law of international human rights bodies, which conceptualize jurisdiction in human rights treaties as either effective overall control of territories or areas or as authority and control over individuals.
Part 4: Do Human Rights Treaties Apply to Extraterritorial Interferences with Privacy? appl[ies] the different models of jurisdiction to a number of possible factual scenarios of extraterritorial surveillance.
Part 5: The Substance of an Extraterritorial Right to Privacy look[s] at what the right to privacy might substantively entail in the extraterritorial context, if it is indeed found to apply.