“Everyone does it”: NSA Spying and International Law

 Posted by: Gibney Mark

Seemingly lost in the daily revelations uncovering massive levels of National Security Agency (NSA) surveillance – wiretapping and metadata collection alike – is the issue of who is responsible for these violations of the human right to privacy. The quick and ready answer is the United States and certainly no other country is anywhere near as well placed (or, apparently, as intent) on gathering information on what literally billions of people in the world are doing each day – whether it be who they talk to and email, where (physically) these individuals might happen to be at any given time and who is with them, and finally, what people say, believe and perhaps even think.

Yet, although the U.S. should shoulder the lion’s share of (moral) blame and (legal) responsibility, matters are not nearly as simple as this. For one thing, one of the common refrains, at least by defenders of such surveillance programs, is that “everyone” does it, which seems to suggest that the United States is no different from any other country.

Under this scenario, the United States spies on Germany – but Germany also spies on the United States. In that way, if all are responsible no single country could, or should, bear special responsibility. Setting aside the question whether there is any likelihood that the German government was able to eavesdrop on the conversations of Presidents Bush and Obama over the past decade in the same manner in which the NSA listened in on Chancellor Merkel, still there is at least some logic in this formulation. In addition, perhaps governments really do not have any legitimate expectations of privacy. Thus, the real problem comes when governments spy on ordinary citizens who have shown absolutely no proclivity towards, or sympathy with, international terrorism.

Yet, beyond the obvious issue of privacy, NSA spying raises some important questions concerning international law itself. One involves the meaning of “state sovereignty” in the sense that the United States has been able to systematically operate in a host of other countries over an extended period of years and has done so with impunity. The second way that the principle of state sovereignty gets called into question is that the domestic governments of these spied upon countries apparently made little, if any, attempt to protect the privacy rights of their own citizens. The point is that this is nothing like how state sovereignty is generally conceptualized.

Beyond this, NSA spying casts serious doubt on the dominant interpretation of two of the most vexing terms in international law: “jurisdiction” and “territory.” With regard to the former, there has been a repeated tendency to restrict the meaning of this term to nothing more than “effective control” over a particular individual or an area of land. Yet, the various NSA spying programs show how limited this view of jurisdiction happens to be. At a minimum, we now know that the United States has exercised some form of jurisdiction – there is no other term for it – over at least half of the people living on this planet.

A country’s “territory” does not change. However, what needs to change is our notion that a human rights violation – privacy in this case – necessarily occurs in the country where a person happens to be located. Rather, a person who is in one state can send an email message that can be intercepted in another state and this data can be transferred to additional states. Where, exactly, has the human rights violation taken place?

But to return to the issue of state responsibility, it is important to note that the U.S. has not acted alone. For one thing, some states have served as listening posts for the NSA, oftentimes from their embassies in foreign lands. In addition, data has been shared across national borders, especially when domestic constraints, or at least the fear of domestic backlash, has restricted states from spying on their own citizens. The easy solution, or so it seems, is to rely on the U.S. to do the spying for these states, much in the way that under extraordinary rendition programs the United States has outsourced much of its dirty work to other countries.

It is by no means clear how responsibility under these various scenarios would be assigned or the forum where such claims could be pursued. However, perhaps the real question is whether NSA spying will serve as yet another example of the impotency of international law to address important “global” problems, or whether the unseemly and illegal practices of NSA surveillance can only be reined in by this law.

Tags: NSA, Spying, US

Jurisdiction and the Allocation of Obligations under Human Rights Law to Multiple States

 Posted by: Have Nienke van der

Much has been said and done in recent decades to explore and exploit extraterritorial applicability of human rights. Whether in court cases or scholarly works, the debate has usually revolved around the concept of “jurisdiction”, as used in human rights treaties to demarcate their applicability. Jurisdiction, first and foremost, functions as a threshold for applicability of human rights treaties. Many opinions have been heard on the criteria that should be met before a state has jurisdiction and whether jurisdiction should form a high or low threshold. Without wanting to dwell on this issue too much, suffice it to say that international legal discourse has moved towards an understanding of jurisdiction as based on factual control exercised by a state over people. As explained by the European Court of Human Rights (ECtHR) in the 2011 Al-Skeini case this factual control can either be exercised in the form of effective control over territory or in the form of authority and control over people. In this blog, I submit that an important function of jurisdiction that is yet to be further explored is its role in the allocation of human rights obligations.

The threshold function of jurisdiction already entails a degree of allocation. States that have jurisdiction outside their borders will have obligations under the human rights treaties to which they are a party. Those states that do not exercise the required amount of factual control abroad are not. This is not to say that those states have no obligations under human rights law whatsoever, as jurisdiction is just one, albeit an important, basis for human rights obligations. States may also have certain obligations that do not depend on jurisdiction, such as the obligation to prevent genocide or (developing) obligations to cooperate under economic, social and cultural rights. Such universal obligations may be based on the capacity to effectively influence or being in a position to assist other states. Therefore, jurisdiction as a threshold allocates obligations by distinguishing between states that have obligations based on jurisdiction and states with obligations that do not depend on jurisdiction. However, the allocating function of jurisdiction does not end there.

There is no principled reason why only one state can or should have jurisdiction over a territory or (group of) individual(s). In other words, depending on how strict or lax the threshold of jurisdiction is interpreted to be, there will be more or less room for overlap. However, compared to the amount of research focused on the threshold function of jurisdiction, a lot less effort has been put into exploring the content and scope of obligations on the basis of jurisdiction once states pass the threshold of factual control. So far, it has remained unclear whether and how situations of overlapping jurisdiction influence the scope of obligations of the different states. Imagine a situation in Mali, where terrorists attack civilians. Mali has lost effective control over the region in which the attack takes place. French and Dutch troops acting under a UN peacekeeping mandate are stationed in the area. Several of the civilians flee to the peacekeepers compound looking for protection. Which of the three states has jurisdiction and what are their obligations? And if they all have some form of jurisdiction, which seems likely, does this influence the scope of their obligations? For example, are Mali’s obligations less extensive because of the presence of the peacekeeping force? Does the formal mandate of the peacekeeping force matter in this respect? Or, if Mali still has troops stationed in the area and therefore retains some level of control, does this limit the peacekeepers obligations to act?

Very few cases have so far been decided on by courts that could shed some light on these issues. This does not mean that situations where multiple states are involved in human rights abuses are necessarily exceptional. Rather, most courts have procedural rules that bar claims to be brought against more than one state at a time or to decide on matters involving the legal interests of a third state which is not a party to the dispute. The case law of the ECtHR is leading in regard to issues of multiple state jurisdiction, because its procedural rules allow multiple states to be involved in the same case. An important example of multiple state jurisdiction is the Ilascu case. The ECtHR acknowledged that both Russia and Moldova had a jurisdictional link with prisoners detained by the separatist regime in the Transnistrian region and were responsible for the violation of several of their rights. The main allocating principle in terms of jurisdiction arising from the Court’s case law is the special position of the home state. Even when a state loses all or some of its factual control over a part of its territory, like Moldova in the Ilascu case, it is still expected to take steps to re-establish control and at the same time make an effort to protect the rights of people residing in such areas. But the Ilascu case proves that also states carrying out extraterritorial jurisdiction, such as Russia, may have obligations even if the principal wrongdoer is a separatist regime in a foreign country. Unfortunately, the Court did not spend much time discussing the relationship between the scope of obligations of Moldova and Russia. The Court’s conclusion that Moldova only had positive obligations followed from the lack of control over part of its territory due to the reign of the separatist regime. Russia’s special relationship with the separatist regime, in turn, meant that it had the capacity to influence its decisions and therefore to prevent the violations committed against the applicants. The Ilascu case therefore underlines that the allocation of obligations to multiple states with jurisdiction should be based on states’ capacity to secure rights.

Returning to the Mali-example, Mali as the home state has positive obligations to re-establish control and make an effort to protect the civilians under attack. If it still had troops in the region concerned, this would likely mean their deployment to protect the civilians and perhaps even asking for the assistance of the peacekeepers if they have the mandate to use force. This is of course subject to reasonable limitations of what is possible and proportionate in the specific circumstances. If the peacekeepers do not have such a mandate, the question remains whether Mali’s efforts to protect its civilians would have to be enhanced, knowing that it cannot count on the peacekeepers’ support. France and the Netherlands in any case have jurisdiction over the individuals who fled to their compound and are obligated to protect their rights as relevant to the circumstances. This means not sending them away if it is foreseeable that they will be tortured or killed. In conclusion, the increasing amount of research and number of cases concerning the extraterritorial applicability of human rights obligations shows wide recognition of the fact that a state’s capacity to secure human rights can be limited or complemented by other actors. The allocating function played by jurisdiction in regard to human rights obligations would become more transparent if other states that have jurisdiction and the capacity to act in specific situations are more structurally taken into account.

The ILC Work on the Protection of Persons in the Event of Disasters

 Posted by: Valencia-Ospina Eduardo

In the aftermath of a disaster, affected States need to address its material consequences. For this purpose, aid is normally forthcoming from other States, international organizations and Non-Governmental Organizations. In practice, however, this foreign aid is not always accepted. And even if external assistance is agreed to, as the Federation of the Red Cross and Red Crescent Societies (IFRC) put it in 2000: ‘There is no definitive, broadly accepted source of international law which spells out legal standards, procedures, rights and duties pertaining to disaster response and assistance.  No systematic attempt has been made to put together the disparate threads of existing law, to formalize customary law or to expand and develop the law in new ways.’

In this ‘yawning gap’, as the IFRC labeled it, stepped the International Law Commission (ILC or Commision) in 2006 when, in fulfillment of its Charter and Statute mandate and on the proposal of the United Nations (UN) Secretariat it included the topic ‘Protection of persons in the event of disasters’ in its program of work. According to the Secretariat ‘the objective of the proposal [was] the elaboration of a set of provisions which would serve as a legal framework for the conduct of international disaster relief activities; clarifying the core legal principles and concepts and thereby creating a legal “space” in which such disaster relief work could take place on a secure footing’.

Unlike other topics in the ILC’s agenda, the ‘Protection of persons in the event of disasters’ is a truly novel one, on which legally relevant practice is particularly scarce. Apart from a handful of multilateral, mainly regional, agreements and a much larger number of bilateral treaties, mostly on mutual assistance, the bulk of the available material is comprised of soft-law, non-binding instruments elaborated at the intergovernmental level and also by private institutions and entities (e.g. UN General Assembly Resolution 46/182, see here).

The Special Rapporteur has submitted between 2008 and 2013 six consecutive reports for the ILC’s consideration, with draft proposals on the basis of which it has been possible within the Commission to adopt 18 provisional draft Articles. The First Preliminary report in 2008 traced the evolution of the protection of persons in the event of disasters, identifying the sources of the law on the topic, as well as previous efforts towards the development and codification of the law in the area. It also presented in broad outline the various aspects of the general scope with a view to identifying the mail legal questions to be covered and advancing some conclusions. These included the Special Rapporteur’s belief that ‘to achieve complete coverage, work on the topic should extend to all three phases of a disaster situation (pre-disaster, disaster proper and post-disaster), but it would appear justified to give particular attention to aspects relating to prevention and mitigation of a disaster as well as to provision of assistance in its immediate wake.’

The Special Rapporteur singled out the three immediate legal sources of present-day international disaster protection and assistance: international humanitarian law, international human rights law and international law on refugees and internally displaced persons, to which he has systematically reverted in each of his subsequent reports.

The Second report in 2009 treated the scope of the topic ratione materiae, ratione personae and ratione temporis and issues relating to the definition of ‘disaster’ for purposes of the topic, and undertook a consideration of the basic duty to cooperate. The report contained proposals for 3 draft Articles which the ILC expanded to five.

The scope of the draft Articles (Article 1), the definition of disaster (Article 3) and the duty to cooperate (Article 5) are all-encompassing formulations. The scope covers the pre-disaster and disaster proper phases of a disaster situation, even though work on the first phase was deferred to a subsequent stage, it having been dealt with at this year’s session. The definition of disaster is not limited to natural disasters but extends to other kinds of disaster, in particular those attributable to human action. Article 4 makes clear that the draft Articles do not apply to situations to which the rules of international humanitarian law are applicable, in other words, to armed conflict. Article 5 establishes in general terms the duty to cooperate, which is central to the whole project. Article 5 has been supplemented by Articles 5 bis and 5 ter adopted, respectively, at the 2012 and 2013 sessions of the ILC, on the basis of proposals made in the Fifth and Sixth reports. Article 5 bis seeks to clarify the various forms which cooperation between affected States, assisting States and other assisting actors may take in the context of the protection of persons in the event of disasters. Article 5 ter extends the duty to cooperate to the pre-disaster phase.

The Second report devoted one of its four chapters to solidarity and cooperation. Seen in this light, the report traced the concepts to the UN Charter and the 1970 Friendly Relations Declaration and to instruments adopted in fields as diverse as the law of economic development, environmental law, human rights law and international humanitarian law. Nevertheless, within the Commission, doubts were expressed by some members whether solidarity is a principle of international law.

Cooperation should not be interpreted as diminishing the prerogatives of a sovereign State within the limits of international law. On the contrary, the principle underlines respect for the sovereignty of States and its corollary, non-intervention, and the primary role of State authorities in the initiation, organization, coordination and implementation of the measures aimed at the protection of persons in the event of disasters. Such protection will often involve the adoption of political, regulatory, administrative and judicial measures by the affected State, including the deployment of its armed forces within its own territory, which are expressions of the ‘right of every sovereign State to conduct its affairs without outside interference’, as the International Court of Justice put it in its 1986 judgment in the Case concerning Military and Paramilitary Activities in and against Nicaragua.

At the same time, as the Special Rapporteur emphasized in his Third report of 2010, ‘The correlating principles of sovereignty and non-intervention presuppose a given domestic sphere, or a domain réservé, over which a State may exercise its exclusive authority. This sovereign authority remains central to the concept of Statehood, but it is by no means absolute. When it comes to the life, health and bodily integrity of the individual person, areas of law such as international minimum standards, humanitarian law and human rights law demonstrate that principles such as sovereignty and non-intervention constitute a starting point for the analysis, not the conclusion.’

The Special Rapporteur has been consistent from the start in maintaining the inapplicability of the concept of ‘Responsibility to Protect’ to the work undertaken by the ILC on Protection of Persons in the Event of Disasters. Already in his Preliminary report he drew attention to the Secretariat’s observation, when proposing the inclusion of the topic in the ILC’s agenda, that the protection of persons might be ‘located within contemporary reflection on an emerging principle entailing the responsibility to protect’. However, the Special Rapporteur’s personal opinion, expressed also in his Preliminary report, was that the appropriateness of extending the concept of responsibility to protect and its relevance to the present topic required careful consideration. The Commission subsequently endorsed the Secretary-General’s stand according to which ‘the responsibility to protect applies, until Member States decide otherwise, only to the four specified crimes and violations: genocide, war crimes, ethnic cleansing and crimes against humanity. To try to extend it to cover other calamities such as HIV/AIDS, climate change or the response to natural disasters, would undermine the 2005 consensus and stretch the concept beyond recognition or operational utility’.

By virtue of the sovereignty of the affected State, it is the primary duty of its authorities to take care of the victims of a natural disaster and similar emergencies occurring in its territory. Cooperation complements that duty. The nature of the duty to cooperate may vary depending on the actor and the context in which assistance is being sought and offered. But as the Special Rapporteur concluded in his Fifth report in 2012 ‘The duty to cooperate in relief matters does not currently include a legal duty for States to provide assistance when requested by an affected State.’ The Special Rapporteur arrived at his conclusion after surveying international practice as evidenced in international treaties which shows that, although underpinned by the principles of solidarity and cooperation, the provision of assistance from one State to another upon the latter’s request is premised on the voluntary character of the action of the assisting State. That conclusion was confirmed by the overwhelming majority of States that submitted comments in the Sixth Committee in 2011 in response to the ILC’s inquiry.

The Third report examined the principles that inspire the protection of persons in the event of disasters, in its aspect related to persons in need of protection and the question of the responsibility of the affected State. The report contained proposals for three further draft Articles which led to the adoption by the ILC, at its 2011 session, of four additional draft Articles, together with commentaries, on Humanitarian Principles in Disaster Response (Article 6); human dignity (Article 7); Human Rights (Article 8); and the Role of the Affected State (Article 9). It must be pointed out that Article 7 enshrines for the first time as an autonomous provision in the body of what is intended to become an international instrument, the fundamental right to the respect and protection of the inherent dignity of the human person, until now only referred to in the preambles of such instruments.

Also at its 2011 session, the ILC adopted on the basis of proposals made in the Fourth report two more draft Articles with commentaries on the duty of the affected State to seek assistance (Article 10) and the consent of the affected State to external assistance (Article 11).

The Fourth report in 2011 had proposed a draft Article 12 on the right to offer assistance. And the Fifth report the following year, in addition to a draft Article A, renumbered 5 bis as already mentioned, proposed two other Articles dealing with the Conditions on the Provision of Assistance (Article 13) and the Termination of Assistance (Article 14).

On the basis of those proposals, the ILC in 2012 formulated provisions on Offers of Assistance (Article 12), Conditions on the Provision of External Assistance (Article 13), Facilitation of External Assistance (Article 14) and Termination of External Assistance (Article 15). Article 12 recognizes the right of different entities to make offers of assistance in the aftermath of a disaster. Article 13 expresses the right of affected States to place conditions on assistance. Article 14 embodies the obligation of the affected State to take the necessary measures, within its national law, to facilitate the prompt and effective provision of external assistance and to ensure that its relevant legislation and regulations are readily available to assisting actors. Article 15 preserves the right of any actor to seek to terminate the assistance being provided in consultation with the other actors.

At its session this year, the ILC considered the Sixth report, devoted to prevention at the pre-disaster phase, in its concrete manifestation of Disaster Risk Reduction. On the basis of proposals made in the report the ILC adopted, apart from Article 5 ter, also Article 16 on the Duty to Reduce the Risk of Disasters.

As the ILC work is carried out pari pasu taking account of the views of States, draft Articles 1 to 16 and 5 bis and 5 ter have been brought to the attention of successive sessions of the General Assembly in the ILC’s customary annual reports. They were the subject of discussion by the delegations of Member States and Observers in the Sixth (Legal) Committee of the Assembly. As it was the case in the ILC, the Sixth Committee debate centered on the recurrent theme, already identified in the Preliminary report, of the underlying tension between the fundamental principles of sovereignty and non-intervention and the protection of persons. In this connection, special emphasis must be placed on the articulation between Articles 9 and 11, paragraph 1. Article 9 reflects in paragraph 1 the obligation of an affected State to protect persons and provide disaster relief in accordance with international law as stemming from its sovereignty. Paragraph 2 of Article 9 affirms the primary role held by an affected State in the response to a disaster upon its territory. The ILC preferred to use, instead of the term ‘responsibility’, the term ‘role’, borrowed from the Annex to General Assembly Resolution 46/182, in a provision which is furthermore in line with the ‘margin of appreciation’ principle adopted in the European Court of Human Rights, which holds that the ‘national authorities enjoy a wide margin of appreciation under Article 15 [of the European Convention on Human Rights] in assessing whether the life of their nation is threatened by a public emergency.’ Under paragraph 1 of Article 11 as already read ‘The provision of external assistance requires the consent of the affected State’.

It must be stressed that rather than an infringement, Articles 10, 11 and 12 as adopted constitute a reaffirmation of the fundamental international law principles of sovereignty and its corollary non-intervention, already explicitly enshrined in Article 9 on the role of the affected State. Those three provisions are founded on the unambiguous recognition that ‘the provision of external assistance requires the consent of the affected State.’ The right of non affected States is merely to ‘offer’ not to ‘provide’ assistance, and the affected State remains completely free to accept in whole or in part, subject or not to conditions it itself imposes, any offer of assistance from States and non-States actors, whether made unilaterally or in answer to an appeal by that affected State, when seeking assistance in situations in which a disaster exceeded its national response capacity. A duty to ‘seek’, unlike a duty to ‘request’ does not imply the existence of a consent given in advance. Moreover, the affected State retains the right to determine by itself alone whether a particular disaster is beyond its national response capacity or otherwise, in line with the principle of sovereignty, because it is in the best position to rationally and reasonably decide on its capabilities in responding to a disaster.

Despite the divergent view held by some delegations, it has been generally considered in the Sixth Committee that the provisions commented upon maintain the delicate equilibrium that the ILC has so successfully achieved in the elaboration of its Articles.