A Principled Defence of the International Human Right to Privacy: A Response to Frédéric Sourgens
Yale Journal of International Law Online, Vol. 42, No. 2 (2017)
21 Pages Posted: 23 Sep 2017
Date Written: September 17, 2017
This is a response to Professor Frédéric Sourgens’s recent article, The Privacy Principle. In his article Sourgens claims that “existing international law approaches to the protection of global privacy rights face significant hurdles when applied to the digital age of signals intelligence, leading to an apparent normative gap in the law”. He therefore calls for a paradigm shift through the introduction of a “privacy principle” – a “general principle of law protecting the right to privacy". In this response piece I challenge both the existence and value of such a principle arguing that its promotion is thus misguided.
Part I offers a brief summary of Sourgens’ key arguments and his legal rationales for them. Part II pushes against the existence of a general privacy principle. This Part challenges both the methodology employed by Sourgens to identify this principle, as well as the practicality of the overall endeavor. Part III makes the case for an extraterritorial right to privacy under both treaty and customary international law. This Part further analyzes recent successes of IHRL in fighting against unwarranted surveillance, and concludes by providing counter-arguments to the concerns raised by Sourgens regarding the effectiveness of the human rights discourse in this sphere. I end my response in Part IV by acknowledging the real need, noted by Sourgens, for a paradigm shift in the discourse on privacy. This Part makes the claim that the only solution for the many deficiencies of the human right to privacy is to reform human rights thinking and advocacy. Instead of introducing a new non-enforceable general principle with identical content to that of the human right it seeks to supplant, let us reconceptualize the legal content of the human right itself. Instead of a Privacy Principle let us conceive of a Principled Privacy Right. The final concluding Part thus gestures towards a paradigmatic shift within IHRL by suggesting a controversial, yet far more realistic way of applying tailored privacy protections to foreign surveillance, which will both protect global privacy rights while taking into consideration the justified needs of States.
Keywords: International Law, Human Rights, Privacy, Surveillance, General Principles
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