CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ DIGITAL ASPECTS OF THE RIGHT TO PRIVACY ȃ SURVEILLANCE ISSUES these persons are out of the States’ territory as well as jurisdiction – both territorial and jurisdictional requirements are to be fulfilled, should the ICPPR apply. So the only protected community would be the population of that State present within its borders. It is not so hard to agree with this idea, despite the fact that there has simply not been a uniform opinion as to this matter during drafting of the Covenant. 27 But taken literally, the conjunction “and” speaks clearly. However, even the International Court of Justice in the Palestinian Wall Advisory Opinion 28 expressed its opinion that the ICCPR human rights simply do apply extraterritorially. And the majority opinion of the international community members is the same. Article 2 (1) ICCPR thus simply is not interpreted literally and so limiting the obligations of States to their territories only. Though I am usually more inclined to literal / grammatical interpretation of legal provisions, I see no way in doing so with respect to human rights, despite the incorrect wording of article 2 (1) ICCPR. And the international community’s prevailing opinion is the same. 29 Yet, still when surveillance is directed towards another state’s territory, one issue remains – what does “within the jurisdiction” mean. The jurisdiction of a State over an individual (and so responsibility for wrong doings of the state towards such an individual) does not need to be established by control of a person or territory only (effective or not). It may also be temporarily established by the effects of the wrong doing taking place where the individual is located. I am aware of the fact that this claim is not uncontroversial, but I claim that it is the only one really addressing the reality of cyber space where actions by an actor (organ of a state) located physically within one State may take place in another State and yet remain under full control of the previous. That is exactly what digital surveillance does. And the idea of control being established temporarily even over space or person by results of an action is actually not new to international law. Imagine a situation in the real world where no- one would doubt that a State was responsible. Such a scenario includes a State simply being responsible for reparation of damage caused by shooting of a cannon across the borders and killing several citizens of a third State located at the place of impact. 27 MILANOVIČ, Marko. Foreign Surveillance and Human Rights, Part 2: Interpreting the ICCPR. Available online on URL [last visited June 9, 2016]. 28 ICJ, Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory (Advisory Opinion). July 9, 2004, ICJ Reports 2004, p. 136. 29 However, to put it a bit absurdly, I have to admit that I have troubles in agreeing with myself here due to my preference for literal / grammatical legal interpretation. If drafters meant something, they should have put it so and not otherwise. The issue is dealt with quite extensively by Marko Milanovič in : MILANOVIČ, Marko. Foreign Surveillance and Human Rights, Part 2: Interpreting the ICCPR. Available online on URL [last visited June 9, 2016].

261