UN Advances Surveillance Resolution Reaffirming ‘Human Right to Privacy’
UNITED NATIONS, 2 Dec 2013
• Draft goes ahead despite US and UK concerns over language
• Inquiry possible into impact of excessive government spying
The United Nations moved a step closer to calling for an end to excessive surveillance on Tuesday [26 Nov 2013] in a resolution that reaffirms the “human right to privacy” and calls for the UN’s human rights commissioner to conduct an inquiry into the impact of mass digital snooping.
A UN committee that deals with human rights issues adopted the German- and Brazilian-drafted resolution that has become an increasingly sensitive issue among UN members.
The resolution, titled “The right to privacy in the digital age”, does not name specific countries but states the UN is: “Deeply concerned at the negative impact that surveillance and/or interception of communications … may have on the exercise and enjoyment of human rights.”
The resolution says “unlawful or arbitrary” surveillance may “contradict the tenets of a democratic society”. It says states “must ensure full compliance with their obligations under international human rights law”.
The 193-member general assembly is expected to vote on the non-binding resolution next month.
The resolution was co-sponsored by Brazil and Germany after leaked documents from former National Security Agency consultant Edward Snowden revealed that the agency had spied on their political leaders.
Britain and Australia – which, along with the US, Canada and New Zealand, make up the “Five-Eyes” intelligence-sharing alliance – had pushed for its language to be weakened and lobbied successfully for one key component to be removed.
Australia’s bargaining power may have been weakened by revelations that it attempted to listen in on the private cellphone of the Indonesian president Susilo Bambang Yudhoyono, his wife and inner circle. Indonesia is now negotiating a bilateral code of ethics on intelligence-sharing with Australia.
The main sticking point was over language stating that foreign nationals should have the same rights to privacy as the citizens of countries carrying out mass surveillance. US law currently gives citizens far greater protection than foreigners from NSA operations.
The Five-Eyes members argued that the legal right to privacy was an internal matter for states alone.
At the same time, countries including Cuba and Venezuela had pushed for more explicit language on alleged extraterritorial human rights violations during the negotiations.
Diplomatic sources told the Guardian: “The UK and Australia did most of the talking, but outside of the negotiations the US clearly signalled they had concerns.”
The source said he was pleased that the majority of the resolution was now moving forward, and pointed to its call for the UN high commissioner for human rights to conduct an inquiry and present a report next year on “the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data”.
That investigation is likely to look again at the international laws surrounding the “extraterritoriality” of privacy and whether people’s right to privacy has been infringed by the types of surveillance exposed by Snowden.
In a letter to the UN committee, the UK said it was “pleased to join consensus” but expressed frustration that “the text was circulated late in the committee, with the result that member states were given limited opportunity to engage in the thorough discussion that this subject deserves”.
While general assembly resolutions are non-binding, unlike resolutions of the 15-nation security council, those that enjoy broad international support carry significant moral and political weight.
Tung Yin, professor of law at Lewis & Clark Law School, said the resolution would bring further attention to the issues raised by Snowden, but it would be unlikely to have any real impact on the NSA’s activities “except at the margins”.
“Look at the UN special rapporteur’s reports on drone strikes,” he said. “They have consistently warned against extrajudicial killings and yet the number of drone strikes continues to increase.”
Last month, Martin Scheinin, former UN special rapporteur on human rights and counter-terrorism, told the European parliament that the “the surveillance constituted an unlawful or arbitrary interference with privacy or correspondence. This assessment follows independently from multiple grounds”.
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