A/HRC/27/37
against illegal surveillance practices by other States or business entities, in breach of their
own human rights obligations.
C.
Who is protected, and where?
31.
The extraterritorial application of the International Covenant on Civil and Political
Rights to digital surveillance was addressed in several of the contributions received.
Whereas it is clear that certain aspects of the recently revealed surveillance programmes,
for instance, will trigger the territorial obligations of States conducting surveillance,
additional concerns have been expressed in relation to extraterritorial surveillance and the
interception of communications.
32.
Article 2 of the International Covenant on Civil and Political Rights requires each
State party to respect and ensure to all persons within its territory and subject to its
jurisdiction the rights recognized in the Covenant without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status. The Human Rights Committee, in its general comment No.
31, affirmed that States parties are required by article 2, paragraph 1, to respect and to
ensure the Covenant rights to all persons who may be within their territory and to all
persons subject to their jurisdiction. This means that a State party must respect and ensure
the rights laid down in the Covenant to anyone within the power or effective control of that
State Party, even if not situated within the territory of the State Party.”26 This extends to
persons within their “authority”.27
33.
The Human Rights Committee has been guided by the principle, as expressed even
in its earliest jurisprudence, that a State may not avoid its international human rights
obligations by taking action outside its territory that it would be prohibited from taking “at
home”.28 This position is consonant with the views of the International Court of Justice,
which has affirmed that the International Covenant on Civil and Political Rights is
applicable in respect of acts done by a State “in the exercise of its jurisdiction outside its
own territory”,29 as well as articles 31 and 32 of the Vienna Convention on the Law of
Treaties. The notions of “power” and ”effective control” are indicators of whether a State is
exercising “jurisdiction” or governmental powers, the abuse of which human rights
protections are intended to constrain. A State cannot avoid its human rights responsibilities
simply by refraining from bringing those powers within the bounds of law. To conclude
otherwise would not only undermine the universality and essence of the rights protected by
international human rights law, but may also create structural incentives for States to
outsource surveillance to each other.
34.
It follows that digital surveillance therefore may engage a State’s human rights
obligations if that surveillance involves the State’s exercise of power or effective control in
26
27
28
29
CCPR/C/21/Rev.1/Add.13, para. 10.
See Official Records of the General Assembly, Thirty-sixth Session, Supplement No. 40 (A/36/40),
annex XIX, para. 12.2; see also annex XX. See also CCPR/CO/78/ISR, para. 11; CCPR/CO/72/NET,
para. 8; CCPR/CO/81/BEL, para. 6; and Inter-American Commission of Human Rights, Coard et al.
v. the United States, case No. 10.951, Report No. 109/99, 29 September 1999, paras. 37, 39, 41 and
43.
See Official Records of the General Assembly, Thirty-sixth Session (see footnote 27), annex XIX,
paras. 12.2-12.3, and annex XX, para. 10.3.
Advisory opinion of the International Court of Justice on the Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory, of 9 July 2004 (A/ES-10/273 and Corr.1), paras. 107111. See also International Court of Justice, case concerning Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), judgment, 2005, p. 168.
11
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