B.

Right to Privacy and International Human Rights Law in the era of

Extraterritorial State Surveillance

Human Rights in International Law

Ideological Approaches to Human Rights in International Law :
a. Majority of the Western States emphasize basic civil and political rights. Consent
of the governed is seen as crucial in the process.
b. The Soviet Unions Approach is not to focus on the individual, but to focus solely
on the state. So when the Soviet Union would enter into international agreements
with other states, it would contract a purely state obligation, one which does not
have any link to the individual citizens. The USSR began to take a different
approach in the 1980s.
c. Third World Countries generally take a stance which is a mixture of the two
ideologies. They take notice of the importance of both the individual and the state.
The development of International Human Rights Law :
During the 19th Century Positivist Doctrines and State Sovereignty were prevalent,
consequently, human rights were universally viewed as matter within the internal sphere
of national jurisdiction. However, concern for wounded soldiers and treatment of the sick
in times of war developed around 1864 as international instruments.

The League of Nations Article 22 of this League (which was set up during 1919)
provides that ex enemy colonies were to be guaranteed freedom of religion by their
mandatory powers. Article 23 also provided for just treatment of the native populations
in such areas.

The Treaty of Versailles Part 9 of this treat provided for the creation of the
International Labour Organisation which sought to improve the standards of working
conditions.

Post World War 2 During this time, states have seen the need to recognize
international human rights, so international organizations were created to prevent the
horror of war from ever happening again.
Basic Principles of Human Rights Law :
1. Domestic Jurisdiction Although Article 2(7) of the UN Charter provides for
equality and sovereignty of states, states may no longer plead the latter rules as
a bar to international concern and consideration of internal human rights
situations.
2. The exhaustion of domestic or local remedies rule Before a state is
subjected to interference from other states with regard to internal human rights
situations, it must first be given a chance to rectify the situation using their own
constitutional procedures and domestic laws.
3. Priority of Rights Non derogable rights are viewed to have a special place
in the hierarchy of rights. These are generally the rights to (1) life, (2) the
prohibition on torture, (3) slavery, (4) and non - retroactivity of criminal laws.
4. Customary International Law and Human Rights Some Human Rights are
now viewed as Customary International Law, these include the (1) prohibition of
torture, (2) genocide, (3) slavery and the (4) principle of non-discrimination.
Furthermore, human rights established under treaties may be regarded as
obligations erga omnes for the state parties.
5. Evolving Principles Human rights law are observed to have continually
increasing extraterritoriality. Furthermore, the responsibility of states to prevent
the violation of these rights is now being seriously considered. Lastly, this
increasing interest is manifested in national human rights institutions.
6. The protection of collective rights of groups and individuals There are
some rights which are purely collective such as freedom of assembly and the right
to manifest ones own religion. It is viewed that individual and collective rights are
to be balanced.
The Human Rights Provisions in the UN Charter
1. Article 1 It says that the one of the purposes of the Charter is to encouragement
of human rights and fundamental freedoms.
2. Article 13 (1) This section states that the General Assembly is to make initial
studies and recommendations regarding the realization of human rights for all.
3. Article 55 This article provides that the UN shall promote universal respect for
and observance of human rights.

4. Article 56 This provision states that : all members pledge themselves to take
joint and separate action in cooperation
with the organisation for the achievement of the purposes set forth in article.
Note : Shaw, in his textbook says that generally, the word pledge as used in
this provision does not necessarily signify a legal obligation.
The Type of System which governs the UN Charter :
The UN Charter is governed by the Trusteeship System. Its basic objectives depend
on whether or not the territory is self governing or non self governing.
a. For self governing territories Article 76 of the Charter provides that respect
for human rights is encouraged.
b. For non - self governing territories Article 73 of the Charter provides that
the interests of the inhabitants are of paramount interest.
The Universal Declaration of Human Rights : This Declaration has been regarded
as the cornerstone of UN activity since none of the party states dissented to its creation.
Although, this declaration is not a binding document, its purpose was to pave the way for
the creation of a binding universal convention on human rights.

Q : Which UN officer is responsible is given the principal responsibility for UN

Human Rights Activities?
A : The UN High Commissioner, by virtue of General Assembly Resolution 48/141 is given
this task.

Prohibition of Genocide : The Convention on the Prevention and Punishment of the

Crime of Genocide signed in 1948 reaffirmed that Genocide, whether committed during
peace or war times is a crime under international law. The following are the acts of
Genocide :
1. Killing members of the group
2. Causing serious bodily or mental harm
to members of the group
3. Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part
4. Imposing measures intended to prevent births within the group
5. Forcibly transferring children of the group to another group

Genocide : A state is guilty of genocide when a person or a group of persons commits

the crime of genocide and his actions are attributable to them (a particular state).

Q : Which state takes cognizance of the crime of genocide?

A : The crime is to be tried in a court of competent authority of the state in the territory
of which the act was committed OR by an international penal tribunal.

Points to remember on Genocide :

1. The question of intent is such that states may deny genocidal activity by noting
that the relevant intent to destroy in whole or in part was in fact absent.
2. The groups protected do not include political groups.
3. The concept of cultural genocide is not included.
4. There is virtually no mention of means to prevent this crime. However, in Bosnia
and Herzegovina v Yugoslavia, the ICJ ordered Yugoslavia to cease all of its military
and paramilitary operations as a provisional measure. Note that reservations to
the provisions on Genocide is regarded by the ICJ as shocking to the conscience
of mankind.
Prohibition on Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination
which builds on the non discrimination provisions of the UN Charter defines
discrimination as :
any distinction, exclusion, restriction or preference based on race, colour, descent
or national or ethnic origin which has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other field
of
public
life.
note : a violation of this prohibition also constitutes a violation of Customary
International Law
In the Minority Schools of Albania Case, the Permanent Court International Justice
differentiated between equality in law and equality in fact.
1. Equality in law precludes discrimination of any kind

2. Equality in fact - Involves the necessity of different treatment in order to attain a

result which establishes an equilibrium between different situations
The Principle of Self Determination as a Human Right
The International Convention on Human Rights and the Helsinki Final Act of 1975 defines
this right as the right to freely determine ones own political status and to freely pursue
ones own economic, social and cultural development. This right is heavily relied upon
when colonized inhabitants seek to determine their own political status despite the
contrary wishes of the colonizing state.

Q : Does this right find application beyond the colonial context?

A : Yes. This is largely due to the principle of uti possidetis juris. This posits that
boundaries established and existing at the moment of independence cannot be altered
unless the relevant parties consent to change. Its purpose is to prevent the independence
and stability of new states from being endangered by fratricidal struggles provoked by
the challenging of frontiers. So this principle induces new states to consent to the colonial
borders and to take account of the right of self determination of the people.

Kinds of Self Determination :

1. External Self Determination - requires a state to take action in its foreign

policy consistent with the attainment of self-determination in the remaining areas

of colonial or racist occupation. (directed to a population different from the states
own people)
2. Internal Self Determination This is directed to a states own people.
Q : Which provision in international law establishes protection of minorities?
A : Article 27 of the ICCPR (International Convention on Civil and Political Rights. It states
: in those states in which ethnic, religious or linguistic minorities exist, persons belonging
to such minorities shall not be denied the right, in community with the other members of
their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language
Important points to remember on Article 27 as enumerated in Shaws textbook
1. The Article does not define the concept of a minority

2. The Human Rights Committee has made clear that the rights under Article 27
applies to all members of minorities within a states territory and not just its
nationals. In other words, even if the members of the minority are not nationals
of the state, they are still entitled to the rights under Article 27.
3. Statutory Restrictions relating to a persons right to choose his/her residence must
have a reasonable and objective justification and must also be consistent with the
provisions of the ICCPR as a whole.
The Lovelac Case illustrates an example of this principle. In the said case, an
Indian woman was not allowed to reside in the Tobique Reserve by Canadian law
due to the fact that she married a Non Indian.
4. Provisions which provide a limited impact on and livelihood of a minority is not
necessarily a violation of Article 27.
5. Although Article 27 is negatively formulated (the phrase shall NOT be denied is
used), positive acts may be taken to protect such rights.
Indigenous People as Minorities
It has been pointed that these minorities are of a special kind due to their relationship
with their traditional territory.
Since they are a special kind of minority, the International Labour Organisation adopted
Convention No. 107 on Indigenous and Tribal Populations in 1957, an instrument with a
predominantly assimilationist approach to the question of indigenous peoples.
Q : What is the main criterion for the identification of an indigenous group ?
A : Article 1(2) of the Convention provides that self-identification as indigenous or tribal
shall be regarded as a fundamental criterion for determining the groups to which the
Convention applies.
A declaration on the rights Indigenous Peoples was final adopted on 2007 among others,
it provides that indigenous peoples are entitled to the following basic human rights :
1. All human rights and fundamental freedoms as recognized under Article 1.
2. The right to self determination under Article 3.
3. The right to exercise self determination through local autonomy, the right to self
government on matters of internal affairs as well as a means for financing their
autonomous functions under Article 4.
4. The right to maintain their distinctive social and cultural personality while actively
participating with the State under Article 5 of the UN Charter
5. The right to nationality under Article 6.
6. The right to security and threats such as genocide and other forms of violence
under Article 7(2).

7. Right note to be subjected to forced assimilation or destruction of their culture

under Article 8.
8. The right to practice their cultural traditions. The right to education and access to
media and health practices under Articles 9 37.
Other Suggested Collective Rights under the 1986 Declaration on the Right to
Development by the UN General Assembly
1. The right to development under Article 1
2. The obligation of the State to provide favourable conditions for its realisation under
Article 3.
3. The duty of the State to formulate international development policies under Article
4.
4. Effective measures which are to be undertaken to ensure the participation of
women in social and economic reforms with the object of eradicating all social
injustices under Article 8.
The United Nations System of Implementation
1. The General Assembly Under Article 13 of the UN Charter, it has the power
to initiate studies and recommendations on human rights among others. Human
rights agendas may originate from items formulated by the Economic and Social
Council or ECOSOC. The Assembly has also established subsidiary organs under
Rule 161 such as the Special Committee on Decolonisation, Apartheid and many
more.
2. The Commission on Human Rights This was established as subsidiary organ
of the ECOSOC in 1946. It is comprised of 53 members from different states on
the basis equitable geographic distribution. It has been authorized under ECOSCO
resolution number 1235 to take preventive measures against gross violations of
human rights.
3. The Human Rights Council This Council was established with a higher status
in the UN hierarchy as a subsidiary organ of the UN General Assembly. It is
composed of 43 members. This council adopted resolution number 5/1 which
adopted a universal periodic review mechanism which forwards the non
selectivity and transparency in the conduct of reviews.
(Note : By virtue of General Assembly 60/251 on 2006, the Sub Commission on
the Protection and Promotion of Human Rights was abolished and was replaced
by the Human Rights Council.)

DIGESTS
6. An International Framework for Surveillance
Three Caveats of This Article:
1. Not all states will be attracted to the norms discussed
2. States are unlikely to adopt new international norms of surveillance unilaterally
3. This article assumes an absence of another catastrophic terrorist attack
Kinds of Surveillance (but not limited to)
1. Use of human sources to obtain information
2. Wiretapping
3. Use of satellite imagery
4. Efforts to obtain knowledge about another states military capacity
5. Espionage
Definition of Foreign Surveillance
-The clandestine surveillance by one state during peacetim e of the communications
of another states officials or citizens, when those communications take place partly
or entirely outside the surveilling states territory using electronic means.
Two Types of Foreign Surveillance
1. Transnational Surveillance - the surveillance of communications that cross
state borders, including those that begin and end overseas but incidentally passing
through the collecting state
2. Extraterritorial Surveillance - the surveillance of communications that take
place entirely overseas
Three Approaches to Surveillance
1. Lotus Approach - in absence of positive rule, states are free to act (patterned
after the Lotus Case)
2. International Law as Permissive - international law should be read
affirmatively to permit spying (slight variation to the Lotus Approach)
3. International Law as Prohibitive - suggests that international law prohibits
espionage
States are obliged to respect
1. Sovereignty
2. Territorial integrity

Five Reasons Why Spying is Hard to Regulate

1. The act of spying tends to implicate a states core national security interests
2. Espionage by definition is intended to occur without detection
3. States hold their spying capacities as closely guarded secrets
4. Different states have very different surveillance capabilities
5. Spying was more costly when it required a greater on-the-ground presence in
another state
Four Theories in International Relation
1. Realism - assumes that states are the primary actors; the organizing principle in
state relations is anarchy; and states act based on their self-interests
2. Institutionalism - like realism, it assumes that states are primary actors but is
leaning towards cooperation
3. Liberalism - assumes that state interests are established by individuals and
groups within the state
4. Constructivism - views states interests and norms as socially constructed
Four Goals of any International Norm
1. Further transparency of the applicable rules
2. Limit the ability of government officials to act in an unduly discretionary way
3. Increase the accountability of state officials for the actions they take
4. Reduce the disparity in the treatment between citizens and foreigners
Six Norms
1. Legality and Notice of Applicable Rules - citizens should be aware of and
have access to the laws
2. Limits on Reasons to Collect or Query Data - states should focus on what
collection is permitted, and decide to deem specific types of communications to be
prohibited use
3. Periodic Review of Surveillance Authorization - the state must continue to
make its case that an individual or entity meets the statutory targeting standards
4. Limits on Retention of Data
5. Preference for Domestic Action
6. Neutral Oversight Bodies - there must be an independent entity that can
provide oversight
Two Phenomena:
1. Massive increase in the use of electronic communication around the world in the
past decade
2. Governments have increased their capabilities in plumbing into those electronic
communications

The NSA in Global Perspective: Surveillance, Human Rights, and International

Counterterrorism
Two NSA Programs
1. Metadata Program (Domestic) - pursuant to Sec. 215 of the USA PATRIOT
ACT
2. PRISM Program (Foreign) - pursuant to Sec. 702 of the Foreign Intelligence
Surveillance Act (FISA)
Views on Extraterritoriality
1. Narrow View - views that the text of Article 2(1) of the ICCPR does not support
imposing extraterritorial application of the treatys duties
2. Protective Approach - focuses on the maximum protection of human rights
3. Modified Purposive Approach to the Threshold Issue of ICCPR
Applicability - requires a showing of de facto jurisdiction or control over either
persons or territory to trigger the states duty to respect an individuals rights
under the ICCPR
4. Virtual Control Standard - a test that governs the necessity of supporting
extraterritorial application of the ICCPR to surveillance abroad; and another basis
of jurisdiction
Virtual Control Test
-The responsible state must specifically direct the offending non state actors, or least
train and equip them for the specific activity giving rise to the victim states complaint.
Principle of Complementarity
-The principle of complementarity holds that international law norms are implemented
in a complex landscape that requires actions by states and reconciliation with other
rules of international law
U.S. vs European Models
U.S. - the Fourth Amendment or federal legislation requires some judicial role in
the authorization of the acquisition of the content of communications, or even in
the ongoing collection of phone records
European - European courts stress the need for some independent review of
surveillance requests, but courts need not be the agency performing this role
U.S. vs Europe in the Privacy Space
U.S. - tU.S. law construes more narrowly in the national security arena
Europe - European courts have imposed two requirements, notification and
recourse

 Notification - the common principle; notification to individuals whose personally

identifiable information (PII) has been obtained by another individual or entity or
has been disclosed without the individuals authorization
8. The NSA in Global Perspective: Surveillance, Human Rights, and
International Counterterrorism
Definition of Spy
-A person who secretly, in disguise or under false pretense, seeks information with
the intention of communicating it to the enemy. (Francis Leiber, 1863)
Forms of Intelligence
1. Human Intelligence (HUMINT)
2. Signals Intelligence (SIGINT)
3. Photographic/Imagery Intelligence (IMINT)
Three Discrete Jurisdictions
1. Domestic Law of the Target State
2. Domestic Law of the Acting State
3. Public International Law
Provisions on National Technical Means of Verification (Anti Ballistic M issile

Treaty & SALT I Agreem ent)

1. Each Party shall use national technical means of verification at its disposal in a
manner consistent with generally recognized principles of international law.
2. Each Party undertakes not to interfere with the national technical means of
verification of the other Party.
3. Each Party undertakes not to use deliberate concealment measures which impede
verification. This obligation shall not require changes in current construction,
assembly, conversion, or overhaul practices.

Two Large Caveats on Increasing Access to Intelligence

1. Intelligence may be overvalued
2. Corresponding danger of undervaluing unclassified or open source material

Conclusion
-This article is premised on the parameters of collecting secret intelligence. It tells us
the various advantages and consequences of spying. There have been arguments on
how spies should be treated in international law due to the nature of their job.
Intelligence, however, is more than a necessary evil nowadays. It is relied upon states
for its security. Intelligence then is actually tolerated, and even encouraged. Hence,
it will continue to exist as there are few options as to preserve the states security
without destroying the current peace.