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Guest Post: Creative Ambiguity – International Law’s Distant Relationship with Peacetime Spying

In all the sound and fury over “five eye” intercept programs, commentators appear so far to have paid relatively little attention to international law.  This is no simple oversight.  International law is unusually anemic when it comes to pronouncing on the rights and wrongs of peacetime spying.  This is not to say, however, that international law is silent on matters directly implicated by spying.  Indeed, the Snowden revelations to date suggest a number of ways in which “five eyes” spying raises international law doubts.

Spying from the Territory of Another State

First and most obviously, spying by a foreign power on the territory of another state raises sovereignty concerns.  State “sovereignty” includes, among other things, “the right to exercise jurisdiction over its territory and over all persons and things therein, subject to the immunities recognized by international law”.1 Actions by a foreign state’s agents, done on another state’s territory, may violate the latter’s sovereignty.  This is most acutely true where these actions are illegal under the territorial state’s laws.  In this respect, running a covert wiretap program from another state’s territory in violation of domestic privacy laws is no different from snatching someone from the streets of that state in violation of its kidnapping rules.

This is true even if the operation is mounted under diplomatic cover, in sheds on the roofs of embassies.  (The Snowden releases seem to suggest that some five eye collection activities has been conducted in this manner).  The precise functions of a diplomatic mission consist, among other things, of “ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State”.2 Using a diplomatic mission to intercept communications protected by domestic privacy law might easily exceed the “lawful means” requirements.

Spying and Human Rights

International human rights principles might also be implicated by spying.  See, for instance, this draft UN General Assembly Resolution and Martin Scheinin’s testimony before the EU Parliament.  The Scheinin position is particularly interesting in asserting a role for the International Covenant on Civil and Political Rights in critiquing “five eyes” surveillance.  I would also point to the insightful exchanges between David Cole (here/here) on Just Security and Orin Kerr and Ben Wittes (here/here) on Lawfare.  This conversation is normative, asking what rule human (and civil) rights law should play in this area.

And this forward-looking thinking is particularly timely.  Not least: there is good reason to doubt that human rights treaty law actually reaches the conduct at issue so far in the Snowden releases.  Covert electronic surveillance indisputably impairs privacy, a right guarded by Article 17 of the International Covenant on Civil and Political Rights (ICCPR).  But these privacy guarantees are limited – making them a modest constraint on state electronic surveillance so long as certain basic protections are observed.

In addition, whatever its content, it is doubtful that Article 17 reaches extraterritorial spying.  Under Article 2, a state’s ICCPR obligations extend to “all individuals within its territory and subject to its jurisdiction”.  While the issue is sometimes contested, the Human Rights Committee and the International Court of Justice have concluded that the ICCPR does have a modest extraterritorial reach.  Specifically, 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.3

Covert extraterritorial surveillance almost by definition will not be of persons within the spying state’s effective control.  It follows that the ICCPR privacy protections are inapplicable, unless there is a dramatic re-construal of the treaty’s reach.

For these reasons, the ICCPR is of modest use in critiquing the extraterritorial activities of signals intelligence agencies.  Which is not to say that the UN Human Rights Committee will pause in examining the issue – it is currently reviewing US surveillance in its periodic report on US compliance with the ICCPR (see para. 22).

Purely Transnational Intelligence Gathering

There is even less to say when the spying is “transnational” — that is, the intercept is conducted by agencies physically located on the territory of the spying state, drawing on communications transiting between states (and indeed, often intercepted on the territory of the spying state).  Human rights preoccupations can be dismissed on the jurisdictional basis described above – the individuals whose communications are intercepted are far from the effective control of the spying state.  Likewise, it is difficult to see how the intercept of electronic leakage from one state in the territory of another state violates a sovereignty interest.

The International Telecommunications Convention does provide (in Article 22) that members will “take all possible measures, compatible with the system of telecommunication used, with a view to ensuring the secrecy of international correspondence.”  This is, however, hardly a resounding prohibition.  The treaty also states that members “[n]evertheless, …reserve the right to communicate such correspondence to the competent authorities in order to ensure the application of their internal laws or the execution of international conventions to which they are parties.” Put another way, a domestic law steering international communications to a security agency on national security grounds is plausibly an “internal law” that trumps the secrecy proviso found in the Convention.

Conclusion

In sum, public international law rules pertaining to spying are best described as a checkerboard of principles, constraining some practices in some places and in relation to some actors, but not in other cases in relation to other actors.  The clearest principle is a simple expression of sovereignty preoccupations: don’t spy on the territory of another state, in violation of its laws.  Beyond that, there is no simple rule governing the international legality of spying.  This may not be a happy situation, but it is fair to say that this is the world that states have quite clearly set out to create.  After all, all states spy at one time or another.

  1. International Law Commission, Report of the International Law Commission to the General Assembly, 1949 Y.B. Int’l L. Comm’n, pt. 2 at 278, containing the draft “Declaration on the Rights and Duties of States”. While the declaration has never been adopted, and is not in its own rights international law, it has had a “long-term effect on the development of international law”. B. Grafrath, The International Law Commission Tomorrow: Improving Its Organization And Methods Of Work, (1991) 85 A.J.I.L. 595. It is fair to say that many of its provisions reflect core precepts in modern international law. []
  2. Vienna Convention, Art 3 (emphasis added). []
  3. 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 []

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About the Author

a vice dean and associate professor at the Faculty of Law (Common Law Section), University of Ottawa. Follow him on Twitter @cforcese.