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Extra-Territorial Surveillance and the Incapacitation of Human Rights

Posted by Arindrajit Basu at Dec 31, 2019 10:55 AM |
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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