[discuss] Constructive responses to surveillance at the intl level (WAS Re: ICANN policy and "Internet Governance")

Fri Jan 10 16:15:28 UTC 2014

On 10/01/2014 12:32, Dr. Ben Fuller wrote:
> there is probably already an international treaty or resolution at
> https://www.treaties.un.org dealing with privacy of communications.

Thank you for the suggestion to check on an international privacy
treaty, Ben. It's been a very interesting exercise, even though I need
to add the caveat that I am not a member of the legal profession, but
only an interested lay person.

Summary (for those who don't want to read my full and lengthy commentary):

There is such an international treaty, the ICCPR, it has been signed and
ratified by the US Senate, but it does not create a law of the nation
that can be independently executed, and Congress has not passed any
enabling legislation. The US has already been notified by the UN HRC
that this is not ok, and a review will take place in March this year.

Full commentary below.
(Referenced URLs have been included at the bottom for better readybility.)

The resolution on "The right to privacy in the digital age" that Brazil
and Germany proposed and which the General Assembly adopted at the UN
(1) was referring to such an international treaty dealing with privacy
of communications, namely the International Covenant on Civil and
Political Rights (ICCPR).(2)

It has been noted by the US Senate that "The Covenant is part of the
international community's early efforts to give the full force of
international law to the principles of human rights embodied in the
Universal Declaration of Human Rights and the United Nations Charter.
The Civil and Political Rights Covenant is rooted in western legal and
ethical values. The rights guaranteed by the Covenant are similar to
those guaranteed by the U.S. Constitution and the Bill of Rights." (4.1)

Ben is right that the NSA does not have to directly pay attention to
such a treaty. However, through ratification in the US Congress, usually
(in theory) such treaties become part of the law of the nation.

In such a case, the President, who is the Chief of the Executive Branch
of Government, and who takes an oath of office to protect the
Constitution (and the laws of the land), would need to tell his
executive agencies, including the NSA, to follow the law created through
ratification of such a treaty and through follow-on enactment of
national laws giving power to such treaty stipulations.

However, here comes the caveat. While the US did sign and ratify that
treaty in 1992, they did also include a number of reservations,
understandings, and declarations. (3)

The first of the declarations states:
"(1) That the United States declares that the provisions of Articles 1
through 27 of the Covenant are not self-executing." (4)

As a clarification, the Senate added in its report on the deliberations:
"For reasons of prudence, we recommend including a declaration that the
substantive provisions of the Covenant are not self-executing. The
intent is to clarify that the Covenant will not create a private cause
of action in U.S. courts. As was the case with the Torture Convention,
existing U.S. law generally complies with the Covenant; hence,
implementing legislation is not contemplated." (4.1, page 20)

This means that the ratification does not create independent US law that
could be pursued in a US Court, but only binds the US internationally.
This interpretation has been upheld in Court (5, 6), but is being
challenged by constitutional scholars. (7)

According to the US Court of Appeals for the Sixth District:
"'Courts in the United States are bound to give effect to international
law and to international agreements, except that a 'non-self-executing'
agreement will not be given effect as law in the absence of necessary
authority.' Restatement (Third) of Foreign Relations Law 111 (1987).
Neither the American Declaration nor the International Covenant is
self-executing, nor has Congress enacted implementing legislation for
either agreement." (6)

The general comment by the Human Rights Committee (1994) condemns this
practice:

"Of particular concern are widely formulated reservations which
essentially render ineffective all Covenant rights which would require
any change in national law to ensure compliance with Covenant
obligations. No real international rights or obligations have thus been
accepted. And when there is an absence of provisions to ensure that
Covenant rights may be sued on in domestic courts, and, further, a
failure to allow individual complaints to be brought to the Committee
under the first Optional Protocol, all the essential elements of the
Covenant guarantees have been removed." (8)

And in 2006, the Human Rights Committee concluded its remarks about the
reports by the US government, and under section C. Principal subjects of
concern and recommendations makes specific mention of the NSA:

"[..] the Committee is concerned that the State Party, including through
the National Security Agency (NSA), has monitored and still monitors
phone, email, and fax communications of individuals both within and
outside the U.S., without any judicial or other independent oversight." (9)

The HRC (2006) further recommends:
"The State party should review sections 213, 215 and 505 of the Patriot
Act to ensure full compatibility with article 17 of the Covenant. The
State party should ensure that any infringement on individual’s rights
to privacy is strictly necessary and duly authorized by law, and that
the rights of individuals to follow suit in this regard are respected." (9)

A review meeting scheduled for the 109th session of the UN HRC in the
second half of October 2013 has been postponed until March 2014 on
request by the USA citing the government shutdown as a reason. (10, 11)
The next review on 14 March 2014 could become interesting, having the
NSA as a subject at sections 332ff of the US Report. (12)

In light of this, it appears to me that the US may perhaps be liable by
international law to ensure the human and civil rights of its citizens
and those of people from other nations. However, if any individual feels
his/her rights may have been violated by the US executive (e.g. NSA),
and presses charges in a US Court, such Court will refuse to make a
judgement, citing lack of jurisdiction under the circumstances of the
ratification with the given reservations and declarations.

The only way out could be to challenge this interpretation in the
Supreme Court. The Supreme Court of North Dakota in January 2004,
however, has already upheld the interpretation of the "not
self-executing" clause of the Senate ratification, summarizing a number
of appelate court cases. (13) The (federal) US Supreme Court has to my
knowledge not yet made a judgement specifically on that particular
clause in relation to the ICCPR.

What is known is an opinion of Chief Justice Marshall, writing in Foster
v. Neilson, 27 U.S. 253, 314-15 (1829):
“Our constitution declares a treaty to be the law of the land. It is,
consequently, to be regarded in courts of justice as equivalent to an
act of the legislature, whenever it operates of itself without the aid
of any legislative provision. But when the terms of the stipulation
import a contract, when either of the parties engages to perform a
particular act, the treaty addresses itself to the political, not the
judicial department, and the legislature must execute the contract
before it can become a rule for the Court.” (14)

Perhaps we need to realize that laws and international treaties have
entered a new era and we need to continuously challenge and advance
human rights. I think this is the essence of the concluding remark by
Harold Hongju Koh, legal adviser to the US Dept. of State, in his speech
at Georgetown Law in October 2012:

"Make no mistake: this is not your grandfather’s international law, a
Westphalian top-down process of treatymaking where international legal
rules are negotiated at formal treaty conferences, to be handed down for
domestic implementation in a top-down way. Instead, it is a classic tale
of what I have long called “transnational legal process,” the dynamic
interaction of private and public actors in a variety of national and
international fora to generate norms and construct national and global
interests. The story is neither simple nor static. Twenty-first century
international lawmaking has become a swirling interactive process
whereby norms get “uploaded” from one country into the international
system, and then “downloaded” elsewhere into another country’s laws or
even a private actor’s internal rules." (15)

URLs:
-----
(1) Draft of Resolution:  "The right to privacy in the digital age"
http://www.un.org/ga/search/view_doc.asp?symbol=%20A/C.3/68/L.45

(2) International Covenant on Civil and Political Rights (ICCPR)
(2.1) http://www.hrcr.org/docs/Civil&Political/intlcivpol.html
(2.2)
https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf

(3) Wikipedia entry:
https://en.wikipedia.org/wiki/International_Covenant_on_Civil_and_Political_Rights

(4) US Senate Ratification (and reservations):
(4.1) http://thomas.loc.gov/cgi-bin/ntquery/D?trtys:2:./temp/~trtysbtYi2b::

(4.2) Background on US ratification:
http://sitemaker.umich.edu/drwcasebook/files/senate_committee_on_foreign_relations_report_on_the_iccpr.pdf

(5) US Court of Appeals (First Circuit) judgement including a reference
on non-self-execution of the treaty:
http://www.state.gov/documents/organization/87314.pdf (page 7)
and
(6) US Court of Appeals (Sixth Circuit) notes  (Footnote 134):
http://openjurist.org/274/f3d/337/robert-a-buell-v-betty-mitchell-warden

(7) Berkeley Law School: John C. Yoo, "Globalism and the Constitution:
Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum.
L. Rev. 1955 (1999)"
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2762&context=facpubs

(8) Human Rights Committee (1994) report (CCPR/C/21/Rev.1/Add.6):
http://www.un.org/ga/search/view_doc.asp?symbol=CCPR/C/21/Rev.1/Add.6
(page 5, para 12).

(9) Human Rights Committee (2006) concluding observations
(CCPR/C/USA/CO/3/Rev.1):
http://www.webcitation.org/query?url=http%3A%2F%2Fwww.state.gov%2Fdocuments%2Forganization%2F133837.pdf&date=2010-10-23

(10) Postponement of US review by UN HRC (2013)
http://www.ohchr.org/EN/HRBodies/CCPR/Pages/ReviewUSA.aspx

(11) Agenda for the 110th session of the UN HRC
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=625&Lang=en

(12) US Report (CCPR/C/USA/4) to the 110th session of the UN HRC
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fUSA%2f4&Lang=en

(13) Supreme Court of North Dakota decision
http://www.ndcourts.gov/court/briefs/20030317.ae1.htm

(14) US Chief Justice Marshall's opinion:
http://openjurist.org/27/us/253/james-foster-v-david-neilson (para 236)

(15) Twenty-First Century International Lawmaking
http://www.state.gov/s/l/releases/remarks/199319.htm

-- 
Peter H. Hellmonds
<peter.hellmonds at hellmonds.eu>
OpenPGP public key: http://blog.hellmonds.net/contact/openpgp/

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