CYIL vol. 7 (2016)

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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.

But

taken literally, the conjunction “and” speaks clearly. However, even the International

Court of Justice in the Palestinian Wall Advisory Opinion

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.

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.

MILANOVIČ, Marko. Foreign Surveillance and Human Rights, Part 2: Interpreting the ICCPR.

Available online on URL <

http://www.ejiltalk.org/foreign-surveillance-and-human-rights-part-2-

interpreting-the-iccpr/> [last visited June 9, 2016].

ICJ,

Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory

(Advisory

Opinion). July 9, 2004, ICJ Reports 2004, p. 136.

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

<http://www.ejiltalk.org/foreign-surveillance-and-human-rights-part-2-

interpreting-the-iccpr/> [last visited June 9, 2016].