Square Peg, Round Hole: International Human Rights and Transnational Spying

This past week, metadata, “Echelon”, NSA intercepts and the like were back before the EU Parliament.  Of particular interest is the detailed background report by former Microsoft privacy officer Caspar Bowden.  Also notable is the brief by highly respected international lawyer (and former UN special rapporteur) Martin Scheinin.  The latter argues that the US NSA’s practices are inconsistent with (an expansive reading of) Article 17 of the International Covenant on Civil and Political Rights (ICCPR).  This provision reads:

1. No 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.

2. Everyone has the right to the protection of the law against such interference or attacks.

            While I am reluctant to differ with an eminent jurist like Professor Scheinin (whose work I have often cited with some relish), I have to confess that I am not persuaded that international spying is truly captured by Article 17, for the reasons set out below.

 

The Content of Article 17

Covert electronic surveillance indisputably impairs privacy.  But the privacy rights in international human rights law are less than robust – indeed, the protection they offer is muted, making them a limited constraint on state electronic surveillance so long as certain basic protections are observed. As Garraway argues that “[t]argeted interference with the right to privacy in accordance with domestic law would not seem to run afoul of the human rights provision of itself, although the targeting will need to be carefully designated so that it does not violate the prohibition against discrimination” found in Article 2 of the ICCPR.[1] 

            The concept of “privacy” is not defined in the Covenant – it does not prescribe, for example, a concept of zones in which a reasonable expectation of privacy might exist.  That said, the invocation of “home” and “correspondence” suggests that these, at the very least, are zones given special protection again interference. 

In relation to this interference, it is notable that the UN Human Rights Committee has reiterated that Article 17 protects against “unlawful” and “arbitrary” intrusion, with unlawful meaning that “no interference can take place except in cases envisaged by the law” and that law must itself “comply with the provisions, aims and objectives of the Covenant”.[2]  The concept of “arbitrariness”, for its part, “is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances”.[3]

            The Committee urges that

[e]ven with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorized interference must be made only by the authority designated under the law, and on a case-by-case basis. [4]

 

It has since opined, in a complaint brought under the ICCPR’s first optional protocol, that state searches of a home, “without legal grounds”, constitutes an arbitrary interference with privacy, family and home within the meaning of Article 17.[5]

The Committee is also obviously prepared to conflate the “correspondence” invoked in Article 17 with more general forms of communication:

Correspondence should be delivered to the addressee without interception and without being opened or otherwise read. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited.[6]

 

“Home”, meanwhile, includes more than domicile, but also place of usual occupation.[7] 

The committee’s views are not international law themselves, but can properly be considered instructive in construing the otherwise ambiguous reach of Article 17.[8]  From these views, it stands to reason that that communications generally and actions that take place in the home or place of work are protected by the Covenant’s rules on interference by the state, whether by virtue of being a subset of the (undefined) international concept of “privacy” or instead as a part of “home” or “correspondence”.

So all this (for what it’s worth) applies to how state parties conduct surveillance in their domestic sphere.  Professor Schenin interpolates other obligations, drawn from a report he authored as special rapporteur in 2009.  The additional expectations he favours are normative more than established doctrine.  But either way, even when considered cumulatively, they are probably no more demanding than the equivalent protections under instruments such as Canada’s Charter of Rights and Freedoms (and indeed bear a striking resemblance to the Charter’s “section 1” considerations).  So I don’t see international law having much to offer in terms of the internal surveillance rules of many democratic states with robust data protection regimes.

 

The Reach of Article 17

But whatever its content, I have considerable difficulty concluding that Article 17 reaches transnational spying.  Article 2 describes the scope of a state’s overall ICCPR obligations as follows: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…”.  An important issues is, therefore, whether individuals subject to the extraterritorial intelligence collection are within the “territory and subject to [the state’s] jurisdiction”. 

Article 2 talks about territory and jurisdiction, implying that the two concepts could be alternative descriptions of the ICCPR’s reach.  This possibility is accommodated by international law, which clearly views jurisdiction and territory as separate concepts.  For instance, states may exercise prescriptive jurisdiction in relation to their nationals irrespective of their location.[9]

Some state resist this read, urging that jurisdiction and territory must both be coincident for the ICCPR to apply.  However, in practice, both the UN Human Rights Committee and the International Court of Justice have concluded that individuals may be within a state’s jurisdiction, even while not on its territory. In the original Human Rights Committee case in which this doctrine was first pronounced, the victim was kidnapped, abused and secreted out of the country by Uruguayan security agents operating in Argentina.[10]  The Human Rights Committee considered that the victim was nevertheless within the jurisdiction of Uruguay. 

More recently, the Human Rights Committee and the International Court of Justice have concluded that a person may be within a state’s jurisdiction when that person is within the power or “effective control” of the state, even if not on the state’s territory.[11]  Whether detention for the purposes, e.g., of interrogation constitutes sufficient “effective control” may depend on the particulars of individual cases.  However, it is notable that the highest court in the United Kingdom, interpreting equivalent obligations under the European Convention on Human Rights, held that events occurring within a British detention centre in Iraq were within the United Kingdom’s jurisdiction for the purposes of the treaty.[12] 

            This is all well and good for many of the human rights in the ICCPR.  In that respect, detention is one thing.  It is much more difficult to see, however, how the ICCPR concept of “effective control” applies to the privacy interests protected by Article 17 and constrains, for instance, extraterritorial electronic surveillance.  Covert extraterritorial surveillance almost by definition will not be of persons within the spying state’s effective control.  The surveilled individual is, therefore, neither within the surveilling state’s “territory” or “jurisdiction”.  It follows that the ICCPR privacy protections are inapplicable, unless Article 2 is to be given an even more expansive reading to include, say, all circumstances in which a state may impact an individual’s rights.  In other words, neither territory nor jurisdiction matter.  Instead the issue is “effect”.  This interpretation would (needless to say) be a dramatic re-construal of the treaty (and roughly analogous to an inversion of the oft-criticized US “effects doctrine” applied in giving extraterritorial reach in its anti-competition laws).

            For these reasons, I don’t see the ICCPR as providing much traction as a basis for critiquing the extraterritorial activities of signals intelligence agencies.  Which is not to say that the UN Human Rights Committee will pause in doing so – it is currently reviewing US practices in relation to the ICCPR (see para. 22). 

But there comes a point where existing instruments are contorted so far beyond their original mandate that they lose credibility in relation even to those areas where they indisputably apply.  Better to recognize a legal gap and deal with it than to try to make the ICCPR reach every eventuality.



[1]           Charles H.B. Garraway, State Intelligence Gathering: Conflicts of Laws, 28 Mich. J. Int’l L. 575, 581 (2006-2007).

[2]           UN Human Rights Committee, General Comment 16, CCPR/C/21/Rev.1 at para. 3.

[3]           Ibid at para. 4.

[4]           Ibid at para. 8.

[5]           Yklymova v. Turkmenistan, UN Human Rights Committee File No. 1460/2006 at para. 7.6.

[6]           UN Human Rights Committee, General Comment 16 at para. 8.

[7]           Ibid at para. 8.

[8]           On this influential nature of Human Rights Committee comments, see Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1991).

[9]           See Restat. (Third) Of Foreign Relations Law of the United States § 402 (1986) (generally, a “a state has jurisdiction to prescribe law with respect to … the activities, interests, status, or relations of its nationals outside as well as within its territory”).

[10]          Lopez v. Uruguay, UN Hum. Rts. Comm., Communication No. 52/1979, U. N. Doc. CCPR/C/13/D/52/1979 (1981).

[11]          UN Human Rights Committee, General Comment 31, UN GAOR, 59th Sess., Supp. No. 40, Vol. 1, at 175, 177, UN Doc. A/59/40 (2004) at para. 12 (noting that Article 2(1)’s references to jurisdiction and territory “does not imply that the State party concerned cannot be held accountable for the violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquiescence of the Government of that State or in opposition to it” and observing that “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party” (emphasis added). In its review of state reports on compliance with the ICCPR, the committee has also suggested that state obligations extend to a state’s armed forces stationed abroad. See, e.g., UN Human Rights Committee, Concluding observations of the Human Rights Committee: Netherlands, para. 8, UN Doc CCPR/CO/72/NET (2001) (relating to the “alleged involvement of members of the [Netherlands] State party’s peacekeeping forces in the events surrounding the fall of Srebrenica, Bosnia and Herzegovina, in July 1995”). More recently, the International Court of Justice referred to this committee jurisprudence in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In that advisory opinion, it concluded that a state’s ICCPR obligations had extraterritorial reach: “the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.” ICJ General List No. 131 (9 July 2004), (2004) 43 ILM 1009 at para. 111.

[12]          Al-Skeini and others v. Secretary of State for Defence,  [2007] UKHL 26