Especially since the beginning of the 19th century, surveillance has become an integral part of many states’ tool to maintain territorial integrity, inform foreign policies, and prevent foreign and domestic threats. Over the years, the means and modes of state surveillance have become more pervasive, more effective, and cheaper, thanks to incredible advancements in technology.
By its very nature, state surveillance threatens an already endangered notion of privacy for which human beings have historically demonstrated an innate desire. So important is privacy, in fact, that for decades, it has been protected under international law as a fundamental right—a protection that is significant not only because privacy is such an integral right in itself, but also because without privacy, other civil liberties, such as the freedom of thought, belief, opinion and expression, cannot be fully or truly exercised.
As technology continues to enhance states’ surveillance capabilities and as new and intrusive means capable of monitoring individuals and entire populations are developed, the idea of a global right to privacy—promoted by international law and its interpretations—crumbles. Not only that, as international law has remained relatively static in the face of changing states’ priorities, merging of our physical and digital worlds, and the consequent emergence of new privacy concerns, decades-old international law encounters serious problems.
This thesis identifies and discusses the following key problems: first, as international law has failed to clearly regulate foreign surveillance, states have embraced the tendency to offer lesser privacy protections to foreigners, vis-à-vis their citizens/residents when conducting surveillance, thereby rendering questionable the idea of a universal right to privacy. Second, there are controversies regarding the application of international law to the extraterritorial surveillance activities of states. Third, although mass surveillance, particularly mass foreign surveillance, has become a standard part of some states’ national security and foreign relations practices, international law has failed to acknowledge mass (foreign) surveillance as a reality of state surveillance, let alone seek to regulate its deployment. Fourth, there are issues with the privacy guarantees under international law as there is little clarity on what the ‘right to privacy’ actually entails.
Having identified and examined these problems, this thesis concludes that current international law rules on privacy are no longer adequate. The thesis then proposes the making of an international cyber surveillance and privacy instrument to resolve identified problems and set baseline standards for the conduct particularly of foreign and mass surveillance, in an ultimate bid to maintain some privacy in an increasingly connected and surveilled world. In other words, this thesis makes doctrinal arguments that highlight the flaws or lacunas in current international law on privacy and surveillance, and suggests the making of a new binding international instrument that would clarify current rules and address apparent lacunas
