More Privacy Principle: A Reply to Asaf Lubin

By Frédéric G. Sourgens, Washburn University School of Law.

I would like to thank Asaf Lubin for his response to my article The Privacy Principle.  In A Principled Defence of the International Human Right to Privacy: A Response to Frédéric Sourgens, Lubin continues a lively discussion we have had on the subject since the Frost Files Jessup Compromis.  In the following, I continue our exchange in the hope that it will prove as fruitful as our earlier late-night correspondence.

Method: Of Indispensability, Fit, and Human Rights

In his reply to The Privacy Principle, Asaf Lubin queries whether the right to privacy meets the criteria of a general principle of law.   Specifically, he suggests that The Privacy Principle fails the test of indispensability (pp. 6-7).  He further rejects as tautological The Privacy Principle’s “fit” test, which I propose as an alternative to his indispensability requirement (pp. 12-14).  Finally, Lubin warns that my conception of general principles could lead to abuse, because “any human right could now resurface as its own ‘co-equal source of international law’ by simply rebranding itself as a general principle.”

The indispensability requirement proposed by Lubin sets an unrealistically high bar.  Lubin seeks to extract from the literature a requirement that “for a general principle to exist, it must be indispensable for the functioning of a legal system” (p. 7).  Many general principles cannot meet this stringent test.  It is perfectly possible to imagine, for example, a legal system without a principle of joint and several liability (contractual disclaimers to this effect abound).  Nevertheless, Judge Simma acknowledged in his separate opinion in Oil Platforms that joint and several liability is a general principle of law.  Law would also not cease to function if we had to live without the celebrated general principle of estoppel.  Risks and diligence obligations would simply be distributed differently.  To demand “indispensability” would be to reduce general principles to “expressing tautologies in Latin” (Schachter, p. 54).  International practice has proved that general principles are more used and more useful than that.

This is not to say that it is possible or desirable to introduce into international law any principle of law upon which municipal laws agree.  Rather, I propose that international law currently employs a “fit” requirement that a general principle, once provisionally established on the basis of comparative law research, not create significant tension with existing rules of international law (pp. 374-75)

Lubin objects that this fit requirement engages in the fallacy of petitio principii.  Essentially, Lubin submits that the fit requirement inserts normative force into general principles, imagining the following question and response between us: “Lubin: Why should I believe that anything these countries legislate, as a matter of their private law, is a general principle of international law?  Sourgens: Because it is compatible with the ICCPR privacy right” (p. 13).

This is a misunderstanding. The fit requirement operates to exclude “false positives”—not to create them.  My answer to Lubin’s question, in contrast to the one he imagines, is: “Look at practice under Article 38(1)(c) of the ICJ Statute.”  Fit merely means that once the comparative law requirements for the proof of a general principle have been fulfilled, one also needs to make sure that the new host body of law will not reject the donor rule. This test is borne out in practice: Judge Crawford recently noted in cautious opposition to the joint and several liability principle that “[t]he language of international law is sufficient” (and arguably inconsistent with it) (p. 331).  Tellingly, he did not argue that joint and several liability was not  “indispensable” in its own right.

What is the upshot?  I propose, as Lubin correctly points out, that human rights norms could be proved as general principles when comparative law research supports the recognition of such principles.  Lubin argues that this would be absurd: it would permit one to submit, for instance, the existence a “liberty principle” to support the wrongfulness of CIA black sites in Poland (p. 7).  Unsurprisingly, I find such a proposal far from absurd and—should comparative law research confirm its existence—desirable.

I am far from the first to suggest that human rights could be proved or augmented by general principles of law.  Bruno Simma and Philip Alston have canonically done so in the past, though I am more doctrinally committed to at least partial proof of the principle in foro domestico (p. 102).  I am also far from the first to suggest that human rights principles not only fit international law, but that many of them are “essentially a matter of good faith on the part of the state” (Higgins, p. 99).  The Privacy Principle therefore should not fail simply because the right to privacy is expandable or dispensable.

Comparative Law: Rights, Duties, and Principles

Lubin further posits that a key problem with the comparative law method employed in The Privacy Principle is that each privacy obligation in the civil laws examined “only applies territorially” and thus “[t]he privacy protections enumerated therein do not apply to a non-national in a foreign country” (p. 8).  Consequently, Lubin submits that extending privacy rights beyond the territory of the spying State is foreclosed as a matter of comparative legal analysis.

Lubin’s comment turns on the relationship between rights and duties.  It essentially asks, “Which came first, the duty or the right?”  Lubin’s submission is that the duty must come first.  His concern with territoriality reflects a view that sees (human) right as only the correlative effect of a duty imposed upon a State to restrain from certain kinds of action.

The Privacy Principle rejects this hierarchy.  It submits with others that “[r]ights suppose a correlative obligation on the part of the state” (p. 99).  This primacy of rights is rooted in the underlying link between rights and dignity. In the first instance, jurisprudence guided by human dignity “sets as its goal the maximization of access by all to all the values humans desire, i.e., the things they want out of life (and not just those things they need as determined usually by someone other than themselves)” (Wiessner, p. 528).  Human dignity is the condition that makes the human good—ethical flourishing—possible.  The right to a dignified life thus defines the duties imposed upon others to make a dignified life possible—not the other way around.

Recognizing a general privacy principle affirms that the right precedes the correlative duty.  The Privacy Principle, as Lubin concedes, “is correct in concluding that ‘the legal systems studied conceive of privacy as a right’ and that the ‘right to privacy has support from a diversity of legal traditions’” (p. 9).  This right to privacy intuitively is personal.  If a general privacy principle exists, then the right extends to every individual, no matter where on the globe she might be located.  Every person would further have a right to privacy irrespective of what technology a would-be assailant might use and regardless of where an invasion might be directed from.  While the right may thus be localized, the correlative duty cannot.

This relationship between a personal privacy right and global correlative duties not to intrude is not the province of “notoriously wishful thinkers” (Simma & Alston, p. 84, quoting John Humphrey).  A recent lawsuit in France commenced by the Duke and Duchess of Cambridge provides a concrete example from a civil law jurisdiction.  The Duchess of Cambridge was photographed during her French vacation at the side of a private pool in a state of relative undress.  The pictures were published.  She successfully petitioned the French courts for relief sounding in invasion of privacy.  The court granted relief not only against the immediate French offending parties, but also against Ernesto Mauri, the CEO of Italian publishing house Mondadori, which ultimately owned the publication that purchased and printed the pictures in question.  Ernesto Mauri and Mondadori may or may not have had a preexisting duty not to invade the privacy of a British subject, the Duchess of Cambridge, in France as a matter of Italian law.  The French courts cared little, and so should we.

Why Private Law?

This leaves the last question: why choose private law? Lubin charges that this choice of law constitutes “cherry-picking” (p. 8).  He further submits that intelligence gathering is very much a sovereign right and thus should be analyzed as a matter of public law rather than the private law chosen in The Privacy Principle  (p. 10).  He thus rejects the notion that the State sheds its right to regulate when it steps across its border threshold to spy upon private persons beyond its shores.

As a doctrinal matter, I disagree with Lubin’s submission that private law is not an appropriate source for general principles.  As I discuss in The Privacy Principle, a great many of the general principles recognized in international law are premised in private law (e.g., joint and several liability and passage over adjacent land) (p. 376). The proposal quoted by Lubin to require a synthesis of private, public, administrative, constitutional, and procedural law in the derivation of every general principle is therefore honored in the breach, if it ever actually became a requirement for proving a general principle at all.

My choice of private law has deeper roots than this doctrinal difference.  To begin with, the signals intelligence focus of The Privacy Principle sets the scene for the right to privacy in cyberspace.  Cyberspace evades ready territorial categorization or territorial jurisdiction.  It creates significant problems for the conception of sovereignty—to the point of leading some like Michael Schmitt to categorize sovereignty in cyberspace as a grey zone (pp. 4-7).  Cyberspace in this sense shares essential qualities with Itamar Mann’s description of the law of the sea: “The sea was traditionally thought of as outside of all sovereign territories and free for the navigation of all” (p. 42).  Cyberspace thus shares more than an etymological root with seafaring; both challenge sovereignty or sovereignty-based concerns.

In this context, Mann suggests that the legal enterprise becomes perilous when it is conceived of as wholly dependent upon the sovereign (p. 58).  Such a focus would tend to threaten human dignity without providing a ready sovereignty-based solution to address the underlying problem (pp. 54-55).  Mann ventures that, in this setting, it may well be necessary to go beyond even municipal law to find a foundation for rights.

The Privacy Principle is sympathetic to that view of rights.  As Mann submits, transnational governance processes have evolved beyond the traditional sovereignty paradigm (p. 88-89).  No matter how theorized, sovereignty ultimately “assumes that that humans as such [do not] have legal protections, derivable from an independent source of law” (p. 145).  Consequently, “sovereignty cannot be understood on its own terms, as a self-contained source for authority” (Id.).

This problem is particularly acute in the context of surveillance technology. As Mann explains,  it has “radical effects of human rights” because it “changes the ways in which persons are oriented in the world.  We may no longer be oriented in a way that allows duties to non-citizens to appear” (p. 185).  Mann thus calls for a re-orientation through (legal) imagination, because “if one’s polity does not institutionalize ways in which it can be challenged from without, its positive law may lose its binding force upon the self” (p. 205).

The choice of private law is such a means to re-imagine human rights and to reorient us in the process.  Gralf-Peter Calliess and Peer Zumbansen have argued in the context of transnational private law theory that “democratic theory needs to respond to the growing number of cases in which there is a dramatic divergence between ‘a state’s political community and those whose interests are most affected’” (p. 131).  Private law—as they submit—is in fact capable of overcoming this gap.  As The Privacy Principle shows, private law can precisely overcome the conundrum how (some) positive law may reassert its binding force by providing an independent source of authority to bind the sovereign, if it is reimagined to permit non-citizens to assert a human rights claim.

To insist, as Lubin does (p. 9), that one should ignore private law and bow to sovereign interest is to make too much of sovereignty.  Private law in this instance can reinvigorate the normativity of human rights claims by translating the voice of those affected by surveillance into a cognizable submission to the human rights discourse.  It can orient people in such a way that duties to non-citizens very much appear in a language of their most immediate personal encounters with law—private law and mutual social encounter.

Conclusion

The Privacy Principle sets out to over-determine privacy rights in cyberspace.  It seeks to provide a baseline that treaty law and custom will have difficulty setting, due to the fast-moving nature of cyberspace and the realization in the literature that the development of “State practice and opinio juris is likely to take time” (Schmitt, p. 6), if it will be forthcoming at all.  It does not seek to detract from the advances made by the human rights discourse, which Lubin eloquently describes.  Rather, as this reply endeavors to show, The Privacy Principle is a continuation of those human rights efforts by different means.  It thus hopes to hand that discourse an additional tool with which to advance its mission, and also to advance international law’s mission to order world society under the rule of law rather than under the rule of sovereign power.

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