Ashley Deeks '98 on the ICCPR and an Extraterritorial Right to Privacy
Ben and David Cole have been having an exchange (see here and here) about a “universal right to privacy,” including a discussion about what such a right might look like. Stepping back, it is useful to understand how international law currently creates or regulates a “right to privacy” and how that right might (or might not) extend to extraterritorial surveillance by a state. In short, even those who read the scope of the International Covenant on Civil and Political Rights expansively concede that a state party has obligations only to those individuals subject to that state’s jurisdiction. Can we say that intercepting someone’s phone calls or email makes the person subject to the surveilling state’s jurisdiction? The exercise of translating traditional concepts of jurisdiction over individuals in the physical world to activities in the world of surveillance is not an easy one, and will force states to wrestle with both conceptual and technical questions in the coming months and years.
Most human rights treaties (such as the ICCPR, the Convention Against Torture, and the Convention on the Rights of the Child) contain provisions that regulate the geographical or jurisdictional reach of the treaty’s provisions. As a result, a state party’s responsibilities under the treaty are limited to certain factual situations or certain groups of people. While it is theoretically possible that states could agree to new treaty provisions prohibiting arbitrary interference with the privacy of anyone in the world, this construct would look significantly different from the ways in which states have assumed human rights obligations to date.