MR JUSTICE BURTON
Approved Judgment
and that
“Everyone has the right to the protection of the law against
such interference.”
57.
Amnesty’s case is that the United Kingdom thereby owes a positive obligation to
prevent or forestall the United States from intercepting such communications; this
would extend to not acquiescing in such course by receiving the product. There are
numerous difficulties about such an argument. The first is that such alleged positive
duty would need to be enforceable against the U.K. by this Claimant (Amnesty
International). Then it would seem very unlikely that such a contention would fall
within the ambit of the issue being decided at this hearing, as set out in paragraph 14
above.
58.
As the Respondents point out, Amnesty does not explain how the United Kingdom
could prevent the United States from obtaining (lawfully on the assumptions made
for the purposes of this hearing) communications, from United States
communication providers under s.702 of FISA, to protect its own national security,
nor why the Respondents should be expected, if such is alleged, to undermine the
attempts of the United States to protect its own national security, by informing the
subjects of US surveillance that their personal data had been obtained, stored or
searched by US Officials. The authorities referred to by Ms Brimelow all involve a
state’s connivance in the acts of third parties such as to engage its own
responsibility under the Convention, such as connivance in acts performed by
foreign officials on its own territory (El-Masri v Former Yugoslav Republic of
Macedonia [2013] 57 EHRR 25). There is no authority which imposes any
obligation on the part of contracting states to secure that non-contracting states,
acting within their own jurisdiction, respect the rights and freedoms guaranteed by
the Convention, even if the failure of such non-contracting states to do so may have
adverse effects on persons within the jurisdiction of contracting states; nor to pursue
a complaint by one of its citizens of breach of his or her rights by another state
within the jurisdiction of that state (Bertrand Russell Peace Foundation v United
Kingdom [1978] 14 DR 117 and the other Commission cases recited with
agreement in (R)Al-Rawi v Foreign Secretary [2008] QB 289 at paragraphs 96 to
99). The Respondents also refer to M v Italy [2013] 57 EHRR 29 at paragraph 127,
where the ECtHR said that:
“127 . . . the Convention organs have repeatedly stated that the
Convention does not contain a right which requires a High
Contracting Party to exercise diplomatic protection, or espouse
an applicant’s complaints under international law, or
otherwise to intervene with the authorities of another state on
his or her behalf.”
59.
Ms Brimelow drew our attention to the Report dated 30 June 2014 of the Office of
the United Nations High Commission of Human Rights, in which the UN
Commissioner referred to the failure by states to take effective measures to protect
individuals within their jurisdiction against illegal surveillance practices by other
states, in breach of their own human rights obligations. However, not only does the
UN Commissioner not identify what those human rights obligations are, but in this