Extra-Territorial Surveillance and the Incapacitation of Human Rights
This paper was published in Volume 12 (2) of the NUJS Law Review.
Our
networked data trails dictate, define, and modulate societies in hitherto
inconceivable ways. The ability to access and manipulate that data is a
product of stark power asymmetry in geo-politics, leading to a dynamic
that privileges the interests of a few over the right to privacy and
dignity of the many. I argue that the persistent de facto violation of
human rights norms through extraterritorial surveillance conducted by
western intelligence agencies, compounded by the failure of judicial
intervention in the West has lead to the incapacitation of international
human rights law. Despite robust jurisprudence including case law,
comments by the United Nations, and widespread state practice on the
right to privacy and the application of human rights obligations to
extraterritorial stakeholders, extraterritorial surveillance continues
with aplomb. Procedural safeguards and proportionality tests regularly
sway towards a ‘ritual incantation’ of national security even in
scenarios where a less intrusive option is available. The vulnerable
citizen abroad is unable to challenge these processes and becomes an
unwitting victim of nefarious surveillance practices that further widens
global power asymmetry and entrenches geo-political fissures.
The full article can be found here.
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