human rights

Extraterritoriality and digital surveillance – time for the lawyers and the advocates to bring the dialogue together

This weekend, as an ex-bureaucrat, I felt for the folk at the State Department.  It must have been a ridiculously busy weekend for those preparing for this week’s Human Rights Committee Hearing in Geneva.  On Friday, the New York Times leaked Harold Koh’s legal advice acknowledging that the US obligations under the International Covenant on Civil and Political Rights do not stop at the border.  The NYT article would have meant that the briefing folders that had been merrily making their way up the clearance chain in time to be packed into the delegation’s suitcases would have been discarded (or at least the sections on extraterritoriality would have been yanked out) and all the talking points would have needed to be rewritten. This is not just an important moment for bureaucrats or international human rights law junkies; it is potentially powerful for digital rights activists pushing for reform of global surveillance practices.  Digital rights advocates have been calling for the US government to end global mass suspicionless surveillance and to adhere to their international human rights law obligations.  There may be a strong moral case to support them, but when it comes to the NSA’s overseas activities, the discourse has often lacked a strong legal underpinning.  In order to push governmental policy on this issue, the dialogue needs to mature to the point where it is built on solid legal underpinnings.  The next couple of months bring an unprecedented opportunity to do just that.

The current state of the digital rights dialogue

Up until now, civil society dialogue has pushed the idea that States owe an obligation to respect privacy online for both citizens and non-citizens.  In an open letter to the UN High Commissioner for Human Rights, the Global Network Initiative “has urged the United States to recognize the right to privacy of non-U.S. persons and to strengthen reforms to effectively protect this right”.  The NGO-led International Principles on the Application of Human Rights to Communications Surveillance state that “In order for States to actually meet their international human rights obligations in relation to communications surveillance, they must comply with the principles set out below. These principles apply to surveillance conducted within a State or extraterritorially.”

But it’s hard to find anything in the digital rights sphere that actually specifies the nature and source of an extraterritorial international obligation.  You can’t really blame them.  While you may have a gut instinct that the “right” thing to do is to extend the article 17 right to privacy beyond a country’s borders, it’s actually really tough to make out the technical legal argument supporting this.  The issue goes to heart of what “control” means and whether the scope of a right can be determined by the ability of a State to impact it.  Tricky stuff.

The emerging ideas for a legal basis

One of the few academic articles to specifically tackle the issue of extraterritorial application of article 17 of the ICCPR to digital surveillance is by Peter Margulies.  This argues that the “effective control” test of jurisdiction is inadequate for the online context.  Instead, he posits a test of “virtual control” under which the ICCPR is “applicable when a state can assert control over an individual’s communications, even though it lacks control over the territory in which the individual is located, or over the physical person of that individual”.  I’m not sure that this argument is nuanced enough yet to be able to adopt it in legal cases (and indeed, digital rights groups may be unhappy with Margulies’ conclusion that US surveillance abroad actually complies with article 17).  However, it does go some way towards breaking down the issues and applying international legal reasoning to the issue.

Marko Milanovic has an excellent series of blog posts on the international human rights law implications of surveillance.  He argues that the best way of understanding jurisdiction and international surveillance is to treat rights differently according to whether they are “negative” or “positive”.  Accordingly, “The reason why the Convention would apply is because it should apply to all potential violations of negative obligations, e.g. the one to refrain from interfering with my privacy”.  This argument has a lot of force and makes sense of some of the confusing jurisdictional cases in international human rights law jurisprudence.  However, it is still early days and it is yet to be seen whether a court (or treaty body) would adopt this approach.

The NYT article has prompted a stream of shorter blog posts over the last couple of days, including a great “mini-forum” on Just Security (see especially Jennifer Daskal, Martin Scheinin and Manfred Nowak.  This does not really go into the same depth as Margulies' and Milanovic's analyses, but does go some way towards bringing the legal issue of extraterritoriality and surveillance to a slightly broader audience.

There has been some high-quality legal thinking on this issue but it is still at a fairly early stage of development, and discussion remains confined to international human rights law circles.

The opportunities for change

The best way to effect change to international digital surveillance is through powerful advocacy that speaks to the public but is also supported by strong legal reasoning that speaks to the government and bureaucrats.  Now is the moment to bring these dialogues together.

The Human Rights Committee tends to listen very closely to NGO input (partly in recognition of their valuable contribution, but also because the committee just does not have the resources to conduct extensive research on all the issues covered by the ICCPR in each State).  This means that the NGO community needs to be in the Committee’s ear over the coming week with helpful, informed and well-reasoned views on extraterritoriality and surveillance.

Another key opportunity will be the UN High Commissioner for Human Rights’ forthcoming report.  At the end of last year, the UN General Assembly passed a resolution recognizing the right to privacy in the digital age.  It backed away from any reference to extraterritorial obligations in the text of the resolution.  However, the resolution:

Requests the United Nations High Commissioner for Human Rights to present a report on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance and/or interception of digital communications and collection of personal data, including on a mass scale to the Human Rights Council, at its twenty-seventh session, and to the General Assembly at its sixty-ninth session, with views and recommendations, to be considered by Member States;

This means that there is now an opportunity for a UN report to directly tackle the issue of extraterritorial application of the right to privacy to online surveillance.  Again, it will be important for civil society to make submissions that are well-reasoned, pragmatic and legally-robust.

Much of the advocacy and legal groundwork has been done – the challenge is in making sure that the two dialogues come together.

Whistleblowing about government surveillance: political offense or serious crime?

[cross-posted from] It seems like the world has been turned upside down when a US citizen flees to China seeking political asylum.  And yet Edward Snowden is apparently hiding out in a secret location in Hong Kong after revealing that he is responsible for the leaked information on the US government’s PRISM program of surveillance.  He explains his choice of refuge as being based on Hong Kong’s reputation for defending freedom of speech.  He is also apparently considering Iceland as another potential refuge.  But if the US chooses to prosecute him, will he be able to avoid being sent home to face charges?  A key part of the answer lies in whether his leaking of official secrets qualifies as a ‘political offense’.

The two parallel processes by which Edward Snowden could legally be returned to the US against his will are extradition or immigration removal.  Extradition is the government-to-government process for transferring an individual to another country to face criminal prosecution.  Immigration removal (including deportation) occurs when a non-citizen is no longer legally entitled to remain in a country and is forced to leave.  Often, the individual returns to their country of citizenship, but this is not always the case.  Both of these processes have protections under international law when the person is being sought for prosecution of a ‘political offense’.

Protections for ‘political criminals’

The first thing to note about the protection under refugee law is that in order to get to the point of considering whether Snowden’s alleged offence is ‘political’, he would first need to demonstrate that he is entitled to protection under the Convention on the Status of Refugees.  This requires that there be a ‘wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  As other commentators have already noted, it may be a tall order to show that Snowden is being persecuted (rather than just prosecuted) and that this ‘persecution’ is because of his membership of a particular group or political opinion.  If, and only if, he can show that he meets this test under the Convention on the Status of Refugees, article 1(F)(b) of the Convention would mean that Snowden could not be denied refugee status on the basis of his alleged crime IF it is a ‘political crime’.

If Snowden does not qualify for protection as a refugee, he could be subject to extradition under the extradition treaty between the US and Hong Kong.  The extradition treaty protects ‘political criminals’ by allowing the requested country to refuse to extradite an individual if the alleged offence is a ‘political offence’.  It is important to note that this is entirely discretionary; it would be up to Hong Kong as to whether it considers the offense to be ‘political’ and, if it does, whether it wants to refuse extradition on that basis.  Extradition can be a very sensitive matter between countries and decisions about whether or not to invoke a discretionary provision in a treaty fall into the realm of foreign relations, not black letter law.

But what exactly is a ‘political offense’?

The protections under extradition and refugee law share some terminology and there is definitely an overlap.  However, international human rights lawyers can pass many an hour debating the exact nature of the relationship and reasonable minds could certainly differ about the scope of the protections.

Extradition law

It is generally accepted in extradition law that political offenses can be either absolute (a purely political crime such as treason) or relative (a common crime that is given a political flavor by its context or purpose).  The challenge is to differentiate common crimes from ‘relative political crimes’.  There are two key approaches that can be identified from the cases:  the incidence test; and the predominance test.  Under the ‘incidence’ test, the act must be ‘done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter, a political rising, or a dispute between two parties in the state as to which is to have the government in its hands’ (as defined in the 1891 case of Re Castioni).  Snowden would have a tough time claiming that his act of leaking information was done as part of a political uprising or dispute about government.  He would therefore need to argue that the ‘predominance test’ should apply.

The predominance test weighs the common law criminal elements of the crime against the political elements of the crime in order to determine whether it is predominantly political.  Factors to consider in making this assessment include the existence of an underlying political struggle, the offender’s motive, the nature of the act and the efficacy of the act in achieving its goals.  Snowden would have some good arguments to make using this approach.  He asserts that he was motivated by the belief that the government’s surveillance program breaches the US Constitution and undermines important democratic rights.  There is no violence or direct loss of life caused by his actions but they have been highly effective in generating political debate and public scrutiny.  He would certainly have good case to make that his acts are predominantly political and therefore Hong Kong should not be obliged to extradite him to the US.

Refugee law

There is no definition of ‘political crime’ in the Refugee Convention.  The UN Office of the High Commissioner for Refugees’ guidelines suggest that the following factors should be taken into account:

  1. the crime’s ‘nature and purpose ie whether it has been committed out of genuine political motives and not merely for personal reasons or gain’;
  2. whether there is ‘a close and direct causal link between the crime committed and its alleged political purpose and object’; and
  3. whether the political element of the offence ‘outweighs its common-law character’, which would not be the case ‘if the acts committed are grossly out of proportion to the alleged objective’.

These factors are similar to the factors that are considered in extradition in the context of the incidence test and the proportionality test.  When applying article 1(F)(b), courts have drawn heavily on extradition jurisprudence.

So what does this all actually mean?

In a politically-charged situation like this, the legal framework is important but the outcome will likely be determined by political pressures and careful diplomatic footwork.  The main take-homes of this discussion are that it is not a foregone conclusion that Snowden’s acts will be considered ‘political’, nor that this will prevent him from being either extradited or deported to the US.

Extradition is a very formal process, which can be slow and costly.  Moreover, it can put the two countries in a very awkward situation.  Seeking Snowden’s extradition from Hong Kong would raise the possibility that Hong Kong would have the discretion to refuse on the basis that it is a political offense.  This kind of decision can have a damaging effect on the broader bilateral relationship and both countries would likely prefer to avoid being put in this situation.

Since Snowden is a US citizen, the government may prefer to find a solution through immigration channels rather than seek extradition.  This would mean that Snowden would have to meet the more difficult test of qualifying as a ‘refugee’ before Hong Kong would need to make any decisions about ‘political offenses’.  While this is perhaps an arena in which the countries would feel more comfortable, the case of Julian Assange shows that it certainly does not necessarily remove all controversy.  Whatever happens, we can be sure that it will not be an easy case and the world will be watching very closely.

One heck of a timely UN report on government surveillance of communications

If it had happened on House of Cards, you’d have enjoyed the theater of it, but figured that the writers had taken some artistic license in the timing.  I mean, it just doesn’t happen in real life that the UN releases a report on the dangers of government surveillance on the internet immediately before the news breaks that the US Government has been conducting internet surveillance of previously unimagined proportions.  Critics could unkindly say this is because the UN is never ahead of the game, but in this case, you have to hand it to Frank La Rue – he has clearly authored an exceptionally timely report: 4 June 2013 – “Freedom of expression cannot be ensured without respect to privacy in communications,” United Nations Special Rapporteur Frank La Rue said today, calling for more global attention to the widespread use of surveillance technologies by States in violation of the human rights to privacy and freedom of expression.

5 June 2013 - The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April.

6 June 2013 - The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants …. The NSA access is part of a previously undisclosed program called PRISM, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says. 

The right to privacy is a fundamental freedom in its own right (pardon the pun), but also as an important enabler for other rights such as the freedom of speech.  And yet, the right to privacy is a qualified right.  La Rue’s report notes that international human rights law is not sufficiently nuanced to provide clear guidance for countries and individuals when trying to understand what (if any) government intrusions into an individual’s electronic communications are acceptable.  In general terms, the right to privacy can be limited if the restrictions:

  1. are provided by the law;
  2. do not go to ‘the essence’ of the human right
  3. are necessary in a democratic society;
  4. are not subject to unfettered discretion;
  5. are necessary for reaching an enumerated legitimate aim; and
  6. are proportionate (ie the least intrusive instrument to achieve the desired result, and the restrictions are proportionate to the interest to be protected).

It may well be that the US government’s electronic surveillance activities are permissible restrictions on the right to privacy under international human rights law.  The answer is in the detail of whether the restrictions are ‘necessary’, ‘proportionate’ and sufficiently fettered.  To satisfy this test, the government would certainly need to make some pretty convincing arguments.  President Obama’s brief defence of the program focuses on the fact that the surveillance only looks at ‘meta-data’, in order to identify patterns. This type of pattern can be invaluable in identifying potential security threats, and national security is clearly a legitimate aim in a democratic society.  However, the intrusion on privacy is only acceptable if the level of discretion, oversight and proportionality are adequate, and this can by no means be assumed in the current circumstances.

La Rue’s report concludes by making 17 recommendations.  Many of these recommendations relate to transparency, accountability and public awareness.  For example, he states that laws governing electronic surveillance should meet ‘a standard of clarity and precision that is sufficient to ensure that individuals have advance notice of and can foresee their application’.  In essence, his recommendations capture a sense that reasonable citizens should not be alarmed to learn of the type of surveillance that occurs, should acknowledge that the surveillance is of value and should be reassured that there are adequate oversight mechanisms in place.  Once again, his report is right on the money; the level of outcry in the US media and around water coolers this morning indicates that the current surveillance policies are not meeting the public 'sniff test'.  Something smells decidedly off.

So often, UN reports end with a plea for increased public awareness and further discussion about the issues, but any resulting debate is limited to the international law nerds and human rights nuts amongst us.  However, the freakishly good timing of La Rue’s report may just mean that the issues that he has raised capture mainstream attention and generate some real public debate.


Trust us, we're the Government - sharing evidence internationally

It’s the nature of academic articles that by the time they’re published you’ve almost forgotten that you wrote them, particularly if the journal is an annual.  It is therefore pleasantly surprising that as my article on ‘Sharing Evidence Across Borders:  the human rights challenge’ is published ((2012) 30 Aust YBIL 161), I find that the topic is still very much current and the questions raised are still relevant, possibly even more so than when I wrote it a couple of years ago. Being able to transfer evidence between countries is essential for cross-border investigations and prosecutions.  Even aside from crime types that are obviously transnational in nature such as drug trafficking or international money laundering, everyday crimes are easily given a ‘transnational’ aspect if the criminals use international email providers, have a foreign bank account or if a key witness lives in another country.  Clearly, public policy dictates that investigations and prosecutions can’t be allowed to stop at the border.  To fill this gap Mutual Legal Assistance Treaties (MLATs), law enforcement cooperation and letters rogatory have developed.  However, transferring evidence into another jurisdiction can have significant human rights implications.

After authorities in one country hand evidence over to another country, they may lose control and visibility of how that evidence is used.  And yet, instinctively, it seems like a country should not be able to wash its hands of all responsibility after handing over evidence.  When legal cooperation is used to move people rather than evidence (ie extradition), there are very clear human rights protections.  An abolitionist country cannot extradite or deport a person to a country if there is a real risk that he or she may be subject to the death penalty.  Similar obligations arise if a country wishes to extradite a person to a country where there is a real risk of a person being subject to torture or to cruel, inhuman or degrading treatment or punishment.  However, there is no such obligation if one country provides evidence to another country and that country then uses the information to impose the death penalty, torture or other cruel, inhuman or degrading treatment or punishment on an individual.

Many see this as unjust and there is a temptation to extend the international law that applies to extradition to MLATs and law enforcement cooperation.  After all, the consequences for individuals can be just as dire when countries share evidence as when they cooperate for extradition.  However, if you carefully analyse the extradition jurisprudence and try to apply it to evidence-sharing, you encounter a number of significant logical and legal problems.

In order to be practical and politically-palatable, there must be limits on a country’s human rights obligations.  International human rights law obligations are therefore generally limited to persons within that country’s jurisdiction.  When evidence is provided to foreign countries, it usually affects individuals in the foreign country.  It is difficult to find a logical way to argue that those individuals are within the ‘jurisdiction’ of the country providing evidence.  There are a couple of unique situations in which international human rights law has been found to apply to individuals extraterritorially.  These include where an individual is under that country’s effective control (eg prisons operated in Iraq by allied forces) or for particular rights such as the issuing of a passport or the enforcement of a judgment in absentia.  When you analyse these extraterritorial situations, they seem to be fundamentally different from a person about whom a foreign country facilitates providing evidence.

I therefore argue that international human rights law does not create any obligations with respect to law enforcement cooperation or mutual legal assistance.  This is not to say that there should not be legal obligations, just that they do not currently exist under international human rights law.  Any attempt to create obligations needs to engage with the complexity of the issue, not just assume that the same rules that apply to extradition can be applied to evidence-sharing.

The treaties that create evidence-sharing relationships provide some protections by specifying situations in which the requested country may refuse to provide evidence.  Such situations include where the death penalty would be imposed or there is a real risk of torture.  However, this is permissive rather than mandatory.  Moreover, MLATs and agreements on law enforcement cooperation are negotiated on an ad hoc basis and there is no uniformity in approach.  In the end, it all comes down to the particular policies of the administration that negotiated the treaty and the policies in place at the time that it is asked to provide the evidence.

The government makes decisions about which countries it is appropriate to enter into evidence-sharing relationships with and on what terms.  There is also scope to make decisions about specific requests.  For example, the requested country may specify that evidence will only be provided if the other country gives certain assurances (eg not to impose the death penalty).  Enforcement of such undertakings is a diplomatic matter.  In this way, the responsibility to make the right decisions about who to do business with and on what terms is largely a matter for the executive.

The system is further complicated when third parties hold the requested evidence, and these parties have their own relationship with the owner of the information.  The most pressing current example is online records.  Companies such as Google and Facebook hold large amounts of user data and many of their users reside in foreign jurisdictions.  The relationship of trust between these companies and their users is a valuable part of their business.  Being a good corporate citizen and cooperating with law enforcement to combat crime may also be important, but the priorities are not necessarily always compatible.

This somewhat changes the assumption that evidence-sharing can be handled adequately on a purely diplomatic basis because you have an additional party with a different set of interests.  This is not a new problem; for many years, countries have been sharing bank and telephone records.  However, the scale of the issue has certainly grown, with users storing more and more personal data online and increasing numbers of these users being in different jurisdictions from the tech companies.

These companies can scrutinize the requests that flow through from the Department of Justice or law enforcement to ensure that the legal requirements have been met.  However, where the discretion is a matter for the executive, the companies have limited options.  It is for the government to decide whether the other country’s justice system is adequate or undertakings are sufficient.  Provided that the other legal requirements are met, the company is obliged to hand over their user’s information.  Essentially, the system is based on trust that governments will do the right thing.

The increasing role of third party holders of information brings another dimension to the question of civil liberties protections in international evidence sharing.  It means that there is a new voice in the debate.  While governments have tended to keep evidence sharing confidential, tech companies are increasingly going public about government requests for user data.  Companies may challenge government requests in the courts on behalf of their users and raise public awareness about any perceived deficiencies in the laws.  What has tended to be an obscure area of government practice where the lack of legal protections has gone largely unnoticed now has the potential to become an issue of public discussion and concern.

Julian Assange - epic failure of the international human rights system?

Over the coming weeks and months, international lawyers and commentators will no doubt be falling over themselves to write about the issues raised by Julian Assange’s stalled extradition process and dramatic receipt of diplomatic asylum.  Who could blame us when this case raises so many unusual and complex issues of international law and politics? What interests me most is the fact that the Government of Ecuador has effectively declared its distrust of the human rights protections offered by the extradition and criminal justice processes of three countries.  Not just any countries, mind you; Sweden, the United Kingdom and the United States.  While no country’s justice system is perfect, these three countries arguably have some of the world’s most advanced legal systems for extradition and human rights protection and yet we have seen Ecuador invoke the laws of diplomatic asylum to protect Assange where these systems have allegedly fallen short. So just how can Assange be forcibly removed from the UK to Sweden and then potentially onwards to the US? 

Assange was arrested in the UK pursuant to a European Arrest Warrant.  This is an expedited form of extradition available within the European Union on the basis that members of the European Union have some level of trust in each other’s legal systems.  The EAW system is also bolstered by the fact that all members of the EU are also parties to the European Convention on Human Rights, which establishes a comprehensive system of human rights obligations and enforcement.

If Assange were extradited to Sweden, removal under the immigration process would likely result in him being returned to his country of citizenship, Australia. The only way in which he could legally be forced to travel to the US would be through the extradition process.  Extradition between the US and Sweden is governed by the Convention on Extradition between the United States of America and Sweden 24 October 1961 and the Supplementary Convention on Extradition between the United States of America and Sweden 14 March 1983.  Under article 28(4) of the Council Framework Decision of the European Arrest Warrant, Sweden could not extradite Assange to the US without the UK Government’s consent.

What protections are there before Assange could be removed from the UK or from Sweden?

The UK and Sweden are party to pretty much all of the international human rights law conventions that are relevant to this situation: the International Covenant on Civil and Political Rights; the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the European Convention on Human Rights; and Protocol No. 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death penalty.  This means that the UK and Sweden have well-established obligations under international human rights law not to return anyone to a State where there is a real risk that he or she will be subject to:

  • the death penalty;
  • torture or cruel, inhuman or degrading treatment or punishment; or
  • arbitrary deprivation of life.

There is also growing support for the notion that the European Convention on Human Rights creates an obligation not to return a person to a situation where he or she would be subject to a ‘flagrant denial of justice’ (see Othman (Abu Qatada) v. the United Kingdom).

The Extradition treaty between Sweden and the US (article V) also creates mandatory grounds for refusal of extradition.  These include where the person sought would be tried by an extraordinary tribunal or court, if the Requested State regards the offence as a political offence or if extradition would be ‘obviously incompatible’ with the requirements of humane treatment.

So Sweden certainly wouldn’t be backed into a corner under its extradition obligations and be forced to extradite Assange to the US if it finds basis for his fears of unfair trial, death penalty or persecution.

What mechanisms would there be for Assange to raise his concerns?

While international human rights can be criticised as ‘toothless’, Assange is much better placed than most to enforce his rights, both because of the countries involved in the case and his powerful media presence.

Public and diplomatic pressure is a key factor in the enforcement of rights under the ICCPR because it lacks a binding enforcement mechanism.  The Human Rights Committee is able to hear complaints from individuals who feel that their rights have been compromised.  Sweden is a party to the First Optional Protocol to the ICCPR, which establishes the individual complaint mechanism.  It may take years before the Committee issues its final views on a complaint.  However, in extradition matters, it is not uncommon for the Committee to request that a State take ‘interim measures’ to stay the person’s removal until the Committee’s finding has been made.  While the Committee’s ultimate finding is not binding, most States do not ignore the Committee’s views lightly (particularly when those findings relate to the founder of a powerful new media entity).

Unlike the Human Rights Committee, the European Court of Human Rights is able to make binding findings about cases under the European Convention on Human Rights.  An individual must first exhaust the remedies available under local law before bringing a case before the ECHR.  Assange seemingly passed up his opportunity to make a complaint to the ECHR about the UK’s decision to extradite him to Sweden, but the opportunity would re-present itself if Assange were extradited to Sweden and he had failed in his attempts to fight his extradition to the US in the Swedish courts.

What protections would Assange be entitled to if he were extradited to the US?

Of course, it is not only Sweden and the UK that could owe obligations to Assange.  If Assange were extradited to the US, the US Government would directly owe obligations to protect Assange’s human rights. When making an extradition decision, States cannot rely unduly on the fact that the State requesting extradition is a party to all the relevant international human rights conventions.  Instead, they must make an assessment of the risk based on the actual circumstances in the Requesting State.  Nonetheless, if Assange were extradited to the US, there is a multitude of human rights to which he would be entitled.

The US is a party to the ICCPR and the Convention Against Torture (although not to the optional protocols establishing individual complaints mechanisms).  Under these conventions, the US owes obligations to persons in its jurisdiction not to subject them to torture or cruel, inhuman and degrading treatment or punishment, to provide a fair trial and not to discriminate on the basis of individual political opinions.  In the context of prisoners in Iraq and Guantanamo Bay, the US has fought expansive definitions of just how far their ‘jurisdiction’ extends.  However, assuming that Assange would be extradited to the mainland United States, there seems little doubt that he would be entitled to the full range of rights under the ICCPR and the Convention against Torture, in addition to due process and other rights under the US Constitution.

So Assange has at his disposal the best available tools for enforcing international human rights law.  If Ecuador’s assessment that his human rights are in jeopardy is accurate, this really is an epic failure for the international human rights law system.  Or, of course, we could be entering the realm of international politicking rather than international law.