New Thread: Int'l Law

[Francisco Forrest Martin]

Dear Prof. Froomkin:

There is an enormous amount of treaty law (ACHR, ECHR, ICCPR) and cases interpreting these treaties that recognize the right to privacy, including areas such as wiretaps. See Martin, et al. INTERNATIONAL HUMAN RIGHTS LAW & PRACTICE (1997). Because international human rights law extends extraterritorially (see Cyprus v. Turkey, Loizidou v. Turkey, De Casariego v. Uruguary, Saldias de Lopez v. Uruguay), the right to privacy also extends extraterritorially.  Of course, there are a limited number of governmental interests recognized in these treaties (and the customary international law they reflect) that can justify the interference with the right to privacy, but the sweeping effect of ECHELON or CARNIVORE probably would not pass international law muster.

Give my best to Steve Schnably, Bernie Oxman, Jonathan Simon, Frank Valdes, and Mary Coombs.

Francisco Forrest Martin
Ariel F. Sallows Professor in Human Rights
University of Saskatchewan College of Law

Discussion list for con law professors <CONLAWPROF at listserv.ucla.edu> wrote:
> I wonder if you could specify what you believe to be the source of theprivacy norm on your list.  I ask because there are currently several
processes under way at the international ministerial and law enforcement
levels for cooperation in wiretapping and the like, and I have seen no
sign of this norm in action.

It's true that there are a few trans-national norms regarding privacy,
e.g. the EU Directive, but I have not until now seen suggestions that they
rise to the level of international customary law, or even close.

Instead, I have seen very serious arguments that there is the opposite
norm: that there is a de facto norm allowing spying, or at least the
acquisition of communications intelligence.  Certainly to argue that the
norm is otherwise requires a very sophisticated means of distinguishing
norm-forming state conduct from norm-violating state conduct.

On Fri, 4 Aug 2000, Francisco Forrest Martin wrote:

> I would like to change the direction of the international law
> discussion towards the substantive areas in which present U.S. federal
> and state law is in conflict with the U.S.' international legal
> obligations.  Of course, everyone knows about the death penalty, but I
> think that many on this list will be surprised to learn of some other
> areas.  For example, did you know that international law
>
> - extends extraterritorial privacy protection (e.g., email, wire,
> telephone)?
>
>

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