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.


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.

Book Review: The Child in International Refugee Law

The Child in International Refugee Law by Jason M. Pobjoy, Cambridge University Press, 2017.

Reviewed by Marina Sharpe*

Human rights give legal expression to our most foundational shared precepts of justice. It is therefore always surprising to reflect on the relative recentness of their entry into the corpus of international law. The International Covenant on Civil and Political Rights (ICCPR)[1] and the International Covenant on Economic, Social and Cultural Rights[2] only entered into force in the latter half of the 1970s, more than two decades after the 1951 Convention relating to the Status of Refugees (“1951 Refugee Convention”) became effective.[3] This gap of over twenty years explains in large part why the scholarly project to join up human rights with refugee law remains ongoing. It would even be fair to say that prior to the publication of Jason Pobjoy’s The Child in International Refugee Law,[4] the effort was in its infancy. Indeed, Hathaway’s treatise articulating refugee rights as derived from the 1951 Refugee Convention and the ICCPR was only published in 2005,[5] and McAdam’s book on the ambit of human rights-based non-refoulement came out as recently as 2007.[6] As the first legal treatise to focus on the relationship between human rights and refugee law in the context of a specific class of individuals—the works of Hathaway and McAdam focus on refugees or persons in need of international protection generally—Pobjoy’s contribution has moved the literature on the relationship between human rights and refugee law into its next phase of development, and not a moment too soon.

There are currently more refugees in the world than at any time since World War II, and a large proportion of them are children. All children have special needs, as recognized by international law in the Convention on the Rights of the Child (CRC).[7] Because they lack the protection of their State of origin and, in some cases, of a parent or guardian, refugee children are particularly vulnerable. Yet until the publication of The Child in International Refugee Law, the toolbox that lawyers and other advocates, scholars, and judges could draw upon in this context was nearly empty. In addition to contributing to scholarship on the relationship between human rights and refugee law, The Child in International Refugee Law’s analysis of how the CRC should inform the interpretation and application of the 1951 Refugee Convention’s refugee definition makes a major contribution to this toolbox.

According to Pobjoy, children face two principal challenges in applying for refugee status. He terms the first their “invisibility”: the failure of legal systems or decision-makers to consider children as refugees in their own right. Invisibility affects both unaccompanied or separated as well as accompanied children, though the former can now often apply for refugee status. An accompanied child, however, usually cannot submit her own claim; her status is often based entirely on that of her parent or guardian, regardless of any independent basis of refugee status. The second challenge faced by refugee children is “incorrect assessment”: the failure of decision-makers, when they do hear children’s claims, to consider the applicant’s childhood. Immaturity, for example, may affect the applicant’s ability to describe the risk she would face if returned.

Pobjoy suggests that there are three principal ways in which the CRC can contribute to remedying these two challenges. First, in Chapter 2, Pobjoy explores the CRC as a source of procedural guarantees not otherwise available, which may address the challenge of “invisibility.” Specifically, he argues that the CRC’s Article 12 protection of the child’s right to express her views freely in all matters affecting her and to be heard in judicial and administrative proceedings affecting her may be violated if a child is removed without having had her claim independently examined. He further argues that the CRC’s Article 9 duty of non-separation may be violated in asymmetrical jurisdictions that allow parents to extend status to children but do not allow the opposite, because this asymmetry may make parents reluctant to advance their child’s claim separately.

In the next three chapters, Pobjoy explores the second principal role of the CRC: as an aid in interpreting the 1951 Refugee Convention’s Article 1(A)(2) refugee definition, in which context the CRC may address the challenge of “incorrect assessment.” Chapter 3 focuses on the refugee definition’s well-founded fear requirement. Pobjoy critiques the bipartite understanding of well-founded fear that requires the claimant to establish both objective risk and subjective trepidation, because a child will often be unable to identify or articulate a prospective risk of harm. This argument made in the specific context of the refugee status of children is nonetheless consistent with cutting-edge refugee scholarship.

Chapter 4 continues to address how the CRC should inform the interpretation of the 1951 Refugee Convention’s definition of refugee, here in relation to the identification of persecutory harm. The definition’s “being persecuted” element is now widely understood in line with Hathaway’s conceptualization: “the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”[8] Pobjoy explains how, in the claims of children, such human rights violations should be understood with reference to the CRC, which identifies child-specific forms of harm and strengthens particular rights when the rights-holder is a minor. Here again, Pobjoy’s presentation is based on a sophisticated understanding of contemporary scholarship around the “being persecuted” element of the refugee definition, which his analysis marshals and even advances. Chapter 4 also covers four child-specific forms of persecution in depth: domestic child abuse, the denial of the right to education, family separation, and psychological forms of harm.

Chapter 5 further expands on how the 1951 Refugee Convention’s Article 1(A)(2) refugee definition should be interpreted with reference to the CRC in claims involving children. It focuses on the definition’s nexus criterion—the requirement that persecution be “for reasons of race, religion, nationality, membership of a particular social group or political opinion”—with emphasis on the grounds most relevant to children: the last two plus religion. Again, Pobjoy relates general debates to his focal area, in this case whether the applicant must demonstrate that the perpetrator intended to persecute her for a 1951 Refugee Convention ground, or whether it is sufficient to establish a causal link between a Convention ground and the applicant’s situation. Pobjoy argues that this latter “predicament approach” is more appropriate for children than the former intention-oriented approach, because a child’s heightened vulnerability is often the reason why she is susceptible to persecution.

Pobjoy identifies in Chapter 6 the third way in which the CRC can contribute to the protection of refugee children: as an independent source of status, beyond that available under the 1951 Refugee Convention. Pobjoy builds on the foundation laid by McAdam,[9] developing the argument that Articles 6 (right to life, survival, and development) and 37 (right to liberty and freedom from torture and cruel, inhuman, or degrading treatment) of the CRC, and perhaps even Article 38 (prohibition of underage military recruitment), give rise to child-centric complementary protection from refoulement. He then goes on to address Article 3 (the best interest principle), which is increasingly precluding the removal of children who do not qualify for refugee status under the 1951 Refugee Convention. Pobjoy reviews State practice, academic commentary, and soft law in this regard, finding that Article 3 is increasingly being invoked to protect children—who do not qualify for refugee status but who would nevertheless face harm if removed—from refoulement.

In addition to these issue-specific contributions, the book makes at least two major overarching contributions: one to the international refugee law literature, and the other to public international law more generally. First, while it is not the only work to consider children in the refugee status determination (RSD) process and the role of the CRC in this context,[10] The Child in International Refugee Law is the first book-length study to focus on the role of the CRC in the refugee claims of children generally, as opposed to unaccompanied children specifically. This lays the foundation for further work on the post-recognition standards of treatment owed to all child refugees. This important avenue for future research would be responsive to Hathaway’s call to “build upon” his analysis, grounded in the 1951 Refugee Convention and the two international human rights covenants, to “define the entitlements of sub-groups of the refugee population entitled to claim additional protections.”[11]

The right to education, particularly secondary education, illustrates the importance of such further research. Both the 1951 Refugee Convention and the CRC protect the right of all children to public primary education.[12] Regarding public secondary education, the 1951 Refugee Convention requires only that States parties accord refugee children treatment no less favorable than that accorded to aliens generally in the same circumstances.[13] The CRC, by contrast, requires States parties to make general and vocational secondary education available and accessible to every child.[14] Refugee children thus have greater rights to secondary education under the CRC than they do under the 1951 Refugee Convention, a critical point as refugee children are at particular risk of missing out on secondary school.

The book’s public international law significance relates to treaty interpretation. Article 31(3)(c) of the Vienna Convention on the Law of Treaties mandates the consideration of any “relevant rules of international law applicable in the relations between the parties” in the process of treaty interpretation.[15] This exhortation reflects the principle of systemic integration, which requires that treaties be interpreted against the background of other international legal principles. Article 31(3)(c) is, however, far from clear. It raises three questions: the meaning of “rules of international law,” which rules are “relevant,” and who “the parties” are. Pobjoy parses these issues, ultimately establishing the permissibility of interpreting the 1951 Refugee Convention in light of the CRC. An emerging authority on the law of treaties agrees with this conclusion.[16] In establishing the CRC as “relevant” to the interpretation of the 1951 Refugee Convention and in producing doctrine that proceeds in this regard, Pobjoy has effectively provided a case study that advances understanding of systemic integration, a challenging public international law issue.[17]

Throughout the book, Pobjoy’s analysis is grounded in national jurisprudence from the developed English-speaking—and hence common law—world (principally Australia, Canada, New Zealand, the U.K., and the U.S.). While Pobjoy cites an impressive range of such case law, language barriers presumably prevented him from considering civil law jurisprudence. A useful avenue for future research would be for multilingual lawyers to address the same issues considering non-Anglophone or civil law jurisprudence. Future research might also analyze case law from major refugee hosting states in the developing world, where most of the world’s refugees reside. Such additions would make the commonalities that emerge across municipal jurisdictions more readily generalizable to the international plane.

The Child in International Refugee Law is written concisely, but with a view to reader-friendliness. Its central argument—that the CRC should inform refugee status decisions relating to children—develops along a logical arc and is supported by meticulous and wide-ranging research, drawing on historical and contemporary scholarship, Anglophone jurisprudence, treaty law, and soft international law. The argument is also grounded in a firm understanding of relevant refugee and public international law debates, and as a result the book represents a major contribution not only to the critical topic of refugee children, but also to the broader issues of the relationship between international human rights and refugee law, as well as to the issue of the systemic integration of international law. Every personal bookshelf and institutional library with a refugee section, a human rights section, or a public international law section should include it.

* BA, LLB, BCL (McGill); MSc (LSE); DPhil (Oxon); Visiting Fellow, Centre for Human Rights and Legal Pluralism, Faculty of Law, McGill University.

[1] International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 999 U.N.T.S. 171.

[2] International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 993 U.N.T.S. 3.

[3] Convention Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 150 [hereinafter 1951 Refugee Convention].

[4] Jason M. Pobjoy, The Child in International Refugee Law (2017).

[5] James C. Hathaway, The Rights of Refugees under International Law (2005).

[6] Jane McAdam, Complementary Protection in International Refugee Law (2007).

[7] Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

[8] James C. Hathaway, The Law of Refugee Status 104–05 (1991).

[9] See Pobjoy, supra note 4, ch. 5; see also Jane McAdam, Seeking Asylum under the Convention on the Rights of the Child: A case for Complementary Protection, 14 Int’l J. Child. Rts. 251 (2006).

[10] See, e.g., Jacqueline Bhabha, Seeking Asylum Alone: Treatment of Separated and Trafficked Children in Need of Refugee Protection, 42 Int’l Migration 141 (2004); Mary Crock, Seeking Asylum Alone: The Treatment of Unaccompanied and Separated Children Seeking Refugee Protection in Australia, 42 Austl. Child. Rts. News 1 (2006); Jacqueline Bhabha, Mary Crock, Nadine Finch & Susan Schmidt, Seeking Asylum Alone—A Comparative Study: Unaccompanied and Separated Children and Refugee Protection in Australia, the U.K., and the U.S. (2007).

[11] Hathaway, supra note 5, at 8.

[12] 1951 Refugee Convention, supra note 3, art. 22(1), 189 U.N.T.S. at 168; Convention on the Rights of the Child, supra note 5, art. 28(1)(a), 1577 U.N.T.S. at 53.

[13] 1951 Refugee Convention, supra note 3, art. 22(2), 189 U.N.T.S. at 168. Regarding contingencies such as this one in the 1951 Refugee Convention, see Marina Sharpe, The 1951 Refugee Convention’s Contingent Rights Framework and Article 26 of the ICCPR: A Fundamental Incompatibility?, 30 Refuge 5 (2014).

[14] Convention on the Rights of the Child, supra note 5, art. 28(1)(b), 1577 U.N.T.S. at 53.

[15] Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.

[16] Eirik Bjorge, Treaty Interpretation and The Child in International Refugee Law, Eur. J. Int’l L. Blog (Aug. 30, 2017),

[17] See, e.g., Campbell McLachlan, The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention, 54 Int’l & Comp. L.Q. 279 (2005).