The US, UK and their close intelligence partners have largely failed in their efforts to water down a United Nations draft resolution expressing deep concern about “unlawful or arbitrary” surveillance and calling for protection for the privacy of citizens worldwide.
The attempt to soften the language in the draft resolution was almost exclusively confined to the US, Britain and Australia, members of the ‘Five-Eyes’ intelligence-sharing partnership at the heart of the international controversy over mass surveillance and revelations about spying on allies.
The draft resolution shows the extent to which the three countries have been left isolated on the issue.
Diplomats involved in the negotations have told the Guardian that the US was reluctant to be seen as leading the opposition publicly and instead orchestrated from the sidelines, leaving Australia in the forefront.
Australia’s role is sensitive, coming in a week in which its government has been forced on the defensive over revelations that it attempted to listen in on the private cellphone of the Indonesian president and the first lady.
The co-sponsors of the draft resolution, Brazil and Germany, made several concessions, diluting some of the language to appease the US, Britain and Australia but keeping intact the bulk of the original version.
Crucially, the draft retains language which says the right to privacy should apply no matter the citizenship of the individual. US citizens currently have greater protections from NSA surveillance than foreign nationals.
The final draft agreed on Wednesday after more than a week of negotiation says the UN general assembly is “deeply concerned at the negative impact that surveillance and/or interception of communications, including extraterritorial surveillance and/or interception of communications, as well as the collection of personal data, in particular when carried out on a mass scale, may have on the exercise and enjoyment of human rights”.
The resolution, titled ‘The right to privacy in the digital age’, was hammered out at a committee open to all 193 UN members. It represents the biggest show of international opinion yet in response to the revelations about mass surveillance exposed by whistleblower Edward Snowden.
Brazil and Germany co-sponsored the resolution following disclosure that the the NSA eavesdropped on Brazil’s president Dilma Rousseff and German chancellor Angela Merkel.
Other sponsors include: Austria, Bolivia, North Korea, Ecuador, France, Indonesia, Lichtenstein, Peru, Switzerland, Spain, Luxembourg and Uruguay.
A vote at the UN general assembly on the resolution is scheduled for Tuesday but only if a member state calls for one. Otherwise it will pass automatically as a consensus measure. The US may decide against calling for a vote rather than find itself, as diplomats and officials based at the UN predict, in a tiny, embarrassing minority.
“There is a head of steam building up behind this draft resolution. It is a basic rights issue and these attract a lot of support,” a UN official said.
The main sticking point in the negotiations was over “extra-territoriality”. The US, Britain and Australia argued that the rights to privacy were internal matters for states alone. Brazil and Germany argued that all citizens enjoyed such rights.
José Luis Díaz, head of Amnesty’s office at the UN, welcomed the final draft. “[Brazil and Germany] got most of what they wanted. It is compromise language but it still includes the important line about extraterritoriality”.
He added that this is only the start of UN involvement. “The resolution is going to kick off a very important discussion about surveillance,” he said.
The major concession made to the US, UK and Australia was to drop a reference linking “human rights violations” to extraterritorial surveillance. The original draft had the general assembly “deeply concerned at human rights violations and abuses that may result from the conduct of any surveillance of communications, their interceptions and the collection of personal data, in particular massive surveillance, interception and data collection”.
Reuters quoted a senior UN diplomat describing the new language as a compromise that "sort of breaks the link between extraterritorial surveillance and human rights violations."
The long-term significance of the draft resolution may be its call for the UN high commissioner for human rights, based in Geneva, to conduct an inquiry and present a report next year 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”.
Brazil’s foreign affairs minister, Luiz Alberto Figueiredo, asked earlier this week by the Guardian about attempts by the US and Britain to water down the draft, said he would not comment on specific countries. “But what I would like to say is that the privacy, the right to privacy, is a well established right. It's a human right, it's a basic right in democracy.”
Figueiredo expressed hope that countries that placed a priority on human rights “will support our movement for making sure the internet is kept as a very democratic and free area so that it will benefit everybody”.
The British position expressed at the start of the negotiations was that it had no overwhelming objection to the draft resolution and its concerns were primarily legalistic: that it might create new rights not in existing international treaties. Like the US, it was also concerned about the issue of extra-territoriality.
British ambassador, Sir Mark Lyall Grant, responding to a question from the Guardian last week at the start of the negotiating process, said: “We have seen the first draft of the resolution and there are certainly some amendments that we will be looking to secure. But we are basically engaging constructively and hoping that it will be a consensus resolution.
“We are not talking major changes here. We want to make sure the resolution is consistent with human rights law.”
But a diplomat at the UN closely involved in the negotiations and supportive of the draft resolution accused the US and Britain of creating a smokescreen in claiming their concerns were purely legalistic.
A copy of the US negotiating position, leaked to the foreign policy website Cable, set out its red lines.
It said that the right to privacy is already contained in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The US expressed concern that the early drafts of the resolution went beyond these.
The leaked US paper says: “As reads, it suggests that states have international human rights obligations to respect the privacy of foreign nationals outside the US, which is not the US view of the ICCPR.”
The paper says that as the US government does not consider its surveillance activities illegal, it does not have a problem with condemning illegal surveillance. “Recall that the USG’s collection activities that have been disclosed are lawful collections done in a manner protective of privacy rights, so a paragraph expressing concern about illegal surveillance is one with which we would agree.”
During the negotiations, countries such as Venezuela and Cuba pushed for more explicit language on alleged extra-territorial human rights violations. Russia expressed concern, according to one diplomat, over the possible expansion of language on freedom of expression.
Revelations of the prominent role taken by Australia in trying to water down the draft resolution comes in a week that its government has faced calls from a privacy group to support Brazil and Germany.
The position on the draft resolution of the two remaining members of the Five Eyes partnership, New Zealand and Canada, is not known.
