Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office: Victim Status, Extraterritoriality and the Search for Principled Reasoning

Date01 May 2017
DOIhttp://doi.org/10.1111/1468-2230.12268
Published date01 May 2017
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CASES
Human Rights Watch vSecretary of State for the Foreign and
Commonwealth Office: Victim Status, Extraterritoriality
and the Search for Principled Reasoning
Lea Raible
In Human Rights Watch vSecretary of State for the Foreign and Commonwealth Office the UK
Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in
secret surveillance cases consists in a potential risk of being subjected to surveillance and that
the European Convention on Human Rights does not apply to the surveillance of individuals
who reside outside of the UK. This note argues that the Tribunal’s finding regarding the victim
status of the applicants was sound but that the underlying reasoning was not. It concludes
that the Tribunal’s finding on extraterritoriality is unsatisf actory and that its engagement with
the European Court of Human Rights case law on the matter lacked depth. Finally, the note
considers the defects of the Human Rights Watch case, and the case law on extraterritoriality
more generally, against the backdrop of the place of principled reasoning in human rights
adjudication.
INTRODUCTION
Have you ever made a phone call, sent an email, or, you know, used the internet
[sic]? Of course you have
Chances are, at some point, your communications were swept up by the U.S. Na-
tional Security Agency’s [NSA] mass surveillance programand passed on to Br itain’s
intelligence agency GCHQ [Government Communications Headquarters].1
These are the first lines of an entry on the website of the Privacy International
Campaign.2It was set up by the charity so that individuals could apply to the
UK Investigatory Powers Tribunal (IPT or Tribunal) to find out if they had been
subject to unlawful surveillance. The IPT is a court that adjudicates complaints
about secret surveillance by public authorities, either because the measures
are unlawful or because they are in breach of human rights. The campaign
led to 663 complaints by NGOs and individuals both from within and from
outside the UK. In Human Rights Watch vSecretary of State for the Foreign and
PhD Candidate, Faculty of Laws, UniversityCollege London. I am g rateful to JoeAtkinson, Raquel
Barradas de Freitas, Alex Green, Colm O’Cinneide, Eugenio Velasco and two anonymous refereesfor
their helpful comments and suggestions. Responsibility for the views expressed, of course, remains
mine alone.
1Human Rights Watch and others vSecretary of State for the Foreign and Commonwealth Office and others
[2016] UKIPTrib 15_165-CH at [7].
2 The campaign has since been suspended. See https://www.privacyinternational.org/illegalspying
(last accessed 23 August 2016).
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(3) MLR 510–539
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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