Squaring the Circle? International Surveillance, Underwater Cables and EU-US Adequacy Negotiations (Part 2)
Part 2: On Double Standards and the Way Forward
In Part 1 of this article, published yesterday here, I explained how the US government tries to exclude Executive Order 12333 and international surveillance from the scope of the EU/US adequacy negotiations and I presented four possible responses to the US arguments. In this second Part, I will enter into a critical approach of the EU position on the relevance of the ECHR and I will argue that the US could reasonably put forward an equally strong and legitimate number of counter-arguments. I will also present a series of thoughts and proposals that could help to get out of this mess without endangering the continuity of protection of EU personal data required by the GDPR.
It is not clear whether the ECHR is really applicable to international surveillance
As discussed in Part 1, the US argues that direct or non-compulsory access to data should be excluded from the scope of EU-US adequacy negotiations because “EU Member State direct access measures are not subject to EU law at all” and “a data exporter would have no comparative standard by which to assess whether privacy protections offered by a destination country for the same type of activities are “essentially equivalent” to protections required by EU law”. I argued that this statement, formulated in such broad terms, seems to be wrong, because the ECHR is binding upon all EU Member States and thus offers such a “comparative standard” in relation with direct or non-compulsory access. However, the point that I will make here is that such a “comparative standard” only exists in relation with domestic surveillance activities of European States. The assumption that the ECHR is applicable in a situation in which international surveillance is being conducted, is far from what you would call an axiom.
Claiming that the ECHR applies to surveillance activities undertaken outside the territory of the state parties, raises the crucial question of whether the ECHR has extraterritorial application. Article 1 of the ECHR lays down the principle that “[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention” (emphasis added). In its case law the ECtHR has stressed that the critical test to determine whether the ECHR has extraterritorial application is that of “effective control”, which can be exercised by a State party in the territory under consideration. In the famous Loizidou v. Turkey judgment of 1995, for instance, the Court held Turkey accountable for violations of the Convention that took place outside Turkey’s territory on the basis that these violations were the “result of the continued occupation and control of the northern part of Cyprus by Turkish armed forces”.