42 Yale Journal of International Law Online 1 (September 17, 2017)
Part I offers a brief summary of Sourgens’ key arguments and his legal rationales for them. Part II pushes against the existence of a general privacy principle. This Part challenges both the methodology employed by Sourgens to identify this principle, as well as the practicality of the overall endeavor. Part III makes the case for an extraterritorial right to privacy under both treaty and customary international law. This Part further analyzes recent successes of IHRL in fighting against unwarranted surveillance, and concludes by providing counter-arguments to the concerns raised by Sourgens regarding the effectiveness of the human rights discourse in this sphere. I conclude my response in Part IV by acknowledging the real need, noted by Sourgens, for a paradigm shift in the discourse on privacy. Despite the recent accomplishments, it is nonetheless true, and worth highlighting as Sourgens persuasively does, that IHRL activists have not been able to establish sufficient privacy protections against foreign mass surveillance. This Part makes the claim that the only solution for the many deficiencies of the human right to privacy is to reform human rights thinking and advocacy. Instead of introducing a new non-enforceable general principle with identical content to that of the human right it seeks to supplant, let us reconceptualize the legal content of the human right itself. The final concluding Part thus gestures towards a paradigmatic shift within IHRL by suggesting a controversial, yet far more realistic way of applying tailored privacy protections to foreign surveillance, taking into consideration the justified needs of States.
Lubin, Asaf, "A Principled Defence of the International Human Right to Privacy: A Response to Frédéric Sourgens" (2017). Articles by Maurer Faculty. 2910.