Spy agencies in the United States and the United Kingdom have argued that their recently exposed dragnet surveillance programs are legal and necessary. But international law experts are not so sure.
At a hearing in the European Parliament on Monday, the surveillance initiatives operated by the National Security Agency and its British counterpart, the Government Communications Headquarters, were the subject of legal scrutiny as part of an ongoing inquiry prompted by leaks by NSA whistleblower Edward Snowden. Participating in the session was a judge who has served in the European Court of Human Rights for 15 years, a former United Nations special rapporteur on human rights and counterterrorism, and a London-based international law professor. All three agreed that the scope of the surveillance revealed in the Snowden leaks constituted violations of both European and international laws and treaties.
Martin Scheinin, the U.N. special rapporteur on human rights and counterterrorism from 2005 to 2011, said that the Snowden leaks showed a “massive interference with the privacy rights of EU citizens and others.” The surveillance, he said, amounted to “an unlawful or arbitrary interference with privacy or correspondence, and this conclusion follows independently from multiple grounds.”
Finland-born Scheinin, who is currently the president of the International Association of Constitutional Law, added that he believed the United Kingdom and the United States “have been involved and continue to be involved” in activities that violate their obligations under the International Covenant on Civil and Political Rights. The ICCPR is a 1966 multilateral treaty that is ratified by more than 160 countries, including the United States and the United Kingdom. Article 17 of the treaty states that citizens should not be “subjected to arbitrary or unlawful interference with [their] privacy, family, home or correspondence.”
Separately, the Snowden leaks have prompted several countries—led by Germany—to push for Article 17 to be updated so that it covers spy agencies’ conduct in the “digital sphere.” Scheinin said that he supported this move—but he also suggested that within the current terms of the treaty, there is additional action that could be taken in a bid to rein in spies in the United States and the United Kingdom. He said it was possible under Article 41 of the ICCPR for countries to lodge an “inter-state complaint” about NSA and GCHQ surveillance, initiating what would amount to a sort of arbitration proceeding between countries.
The ICCPR is enforced by the U.N.’s quasijudicial Human Rights Committee, which issues recommendations that are not legally binding. However, the committee does wield significant moral authority, and if it were to rebuke NSA surveillance, it could prove highly embarrassing for the Obama administration, especially given the president’s statement in 2009 "that international law is not an empty promise, and that treaties will be enforced." Coincidentally, the Human Rights Committee is scheduled to issue a review of the United States’ compliance with the ICCPR in March 2014, and you can bet that the NSA’s international privacy violations will not be ignored.
During the European Parliament’s hearing on the issue, there was also significant focus on the possibility of redress for European Union citizens seeking to sue over Internet surveillance programs like GCHQ’s dragnet Tempora program and the NSA’s Prism and XKeyscore systems. Blasting what he called “unacceptable mass surveillance,” European Court of Human Rights judge Bostjan Zupančič said that "if the NSA is in cahoots with EU agencies, the ECHR may launch an action against the state agency of the country where the person is residing.” However, Zupančič said that citizens must exhaust their national courts first. Furthermore, he pointed out, the ECHR does not have the authority to “strike down” national laws and can award damages only to affected individuals.
If a case over the spying does ever end up in the ECHR, though, any plaintiff challenging the snooping could have a strong case. According to Douwe Korff, professor of law at London Metropolitan University, “the kind of surveillance we now know that has taken place is utterly incompatible with the most fundamental rights and data protection principles in the EU.”
The European Parliament committee investigating the surveillance is planning to issue a series of conclusions and recommendations by the end of the year. Its next hearing is due to take place on Nov. 7.
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