Ryan Gallagher, “The World’s Policeman Is Looking Mighty Guilty,” Slate, 17 October 2013
Participating in the session was a judge who has served in the European Court of Human Rights for 15 years, a former United Nations special rapporteur on human rights and counterterrorism, and a London-based international law professor. All three agreed that the scope of the surveillance revealed in the Snowden leaks constituted violations of both European and international laws and treaties.
At a hearing in the European Parliament on Monday, the surveillance initiatives operated by the National Security Agency and its British counterpart, the Government Communications Headquarters, were the subject of legal scrutiny as part of an ongoing inquiry prompted by leaks by NSA whistleblower Edward Snowden. …
Martin Scheinin, the U.N. special rapporteur on human rights and counterterrorism from 2005 to 2011, said that the Snowden leaks showed a “massive interference with the privacy rights of EU citizens and others.” The surveillance, he said, amounted to “an unlawful or arbitrary interference with privacy or correspondence, and this conclusion follows independently from multiple grounds.”
Finland-born Scheinin, who is currently the president of the International Association of Constitutional Law, added that he believed the United Kingdom and the United States “have been involved and continue to be involved” in activities that violate their obligations under the International Covenant on Civil and Political Rights. The ICCPR is a 1966 multilateral treaty that is ratified by more than 160 countries, including the United States and the United Kingdom. Article 17 of the treaty states that citizens should not be “subjected to arbitrary or unlawful interference with [their] privacy, family, home or correspondence.”
Blasting what he called “unacceptable mass surveillance,” European Court of Human Rights judge Bostjan Zupančič said that “if the NSA is in cahoots with EU agencies, the ECHR may launch an action against the state agency of the country where the person is residing.” However, Zupančič said that citizens must exhaust their national courts first. Furthermore, he pointed out, the ECHR does not have the authority to “strike down” national laws and can award damages only to affected individuals.
If a case over the spying does ever end up in the ECHR, though, any plaintiff challenging the snooping could have a strong case. According to Douwe Korff, professor of law at London Metropolitan University, “the kind of surveillance we now know that has taken place is utterly incompatible with the most fundamental rights and data protection principles in the EU.”
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