International law leaves everyone vulnerable in cyberspace

One of the key moments of the NSA-affair from a German perspective was the revelation that the phone of German chancellor Angela Merkel had been tapped. She reacted by stating that “spying among friends, that cannot be” and bemoaned a loss of trust.  

At the same time, others pointed out that the more scandalous revelation is the extent to which US agencies collected data about German citizens. As a reaction the German parliament decided to install a parliamentary committee. Last week, several experts on international law were invited to give their opinion before the committee. An article in the German newspaper Die Zeit, summarized the outcome of the recent hearing bluntly: you only break international law when you are physically present.

Diplomatic Law and Cyberspace

Spying is not outlawed in international law. However, diplomatic law is particular strict in protecting diplomatic communication. While spying and diplomacy always enjoyed relatively close relations, international law, specifically the Vienna Convention on Diplomatic Relations (VCDR) is clear on the matter: the premises of the embassy cannot be used to spy on the receiving country (art. 3 and art. 41 VCDR). Article 3 stresses that any intelligence gathered about the receiving state has to be obtained by lawful means. And article 41 insists on the need to respect the laws and regulations of the receiving state. However, the VCDR focuses on the premises of the embassy and on the conduct of those holding privileges and immunities in their host state. In other words, had Merkel’s phone been tapped from within the US embassy in Berlin, international diplomatic law would have been violated.  However, the VCDR is silent on remotely accessing information. The same activity undertaken from US soil is not covered by diplomatic law.

Human Rights Law and Cyperspace

Similar to the strict rules that apply to diplomatic relations, in countries such as Germany the room that domestic law leaves for gathering intelligence on citizens is strictly circumscribed. However, what happens when German citizens are spied on from outside German territory? International law has several human rights principles that could be invoked in this case. For example, article 17 of the International Covenant of Civil and Political Rights (ICCPR) states that “[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” However, while the ICCPR can potentially be applied in extra-territorial cases, the key requirement for its application is what is called “effective (overall) control.” The acting state, in order to be held responsible under the ICCPR, needs to hold effective control over the person whose rights are violated. Ironically, a simple causal logic where the violation of a person’s rights can be taken to imply that the offending state holds control does not apply. Effective control is associated with physical presence. In that sense cyberspace is a curious world: what we see is virtual control, not physical violence or physical and territorial control. And it is this gap which makes the applicability of international human rights conventions difficult if not impossible.

“… it will only end in disappointment”

It seems that in the era of cyberspace, neither the rights of diplomats nor the rights of citizens are sufficiently protected. One of the legal experts invited before the parliamentary committee, Prof Stefan Talmon, summarized his view by saying that “when it comes to digital surveillance, we should not expect too much from international law, it will only end in disappointment.” We need to wonder whether or not these gaps are intentional. It is clear though that cyberspace is the new frontier when it comes to the protection of diplomatic and individual rights.

[What I outline above mainly builds on the expert opinion given by Prof Stefan Talmon. Another expert who was invited to give his legal opinion, Prof Douwe Korff, expresses slightly more hope when it comes to the applicability of human rights law (the ICCPR and the European Convention on Human Rights). Here is a full list of the experts’ statements before the committee.]