Foreign surveillance and the European Convention on Human Rights. The Extraterritorial Applicability of the ECHR to Violations of the Right to Privacy.

Abstract

The motivation for this dissertation is the balancing act the European Court of Human Rights is currently exploring regarding the universality of human rights on the one hand and the effectiveness of the Convention and its regional character on the other. The issue that will be focused on is whether the obligations of an ECHR member state under the ECHR are triggered in situations where the member state employs non-physical means to interfere with the enjoyment of the right to privacy of persons located outside the member state’s territory.The dissertation’s aim is to research whether Article 1 of the ECHR and the Court’s interpretation of it allows for finding that ECHR member states owe obligations under the ECHR if they surveil or monitor persons outside their territory in a passive way; i.e. without physically interfering with them. To that end, the dissertation discusses the meaning of the term ‘jurisdiction’ in Article 1 of the ECHR and the Court’s case law on when jurisdiction can be found to exist extraterritorially, triggering state’s obligations under the Convention. The dissertation then examines privacy rights interference in modern days, how technological advances have created new means for such interference and the criteria which the Court has developed, with which interference with privacy, particularly secret surveillance, must comply in order not to violate Article 8 of the European Convention on Human Rights. Finally, the dissertation measures a factual scenario of foreign surveillance against the framework which the Court has developed regarding the extraterritorial application of the Convention, and analyses whether and under what circumstances foreign surveillance can trigger state’s obligations under the Convention.