Determinación de fuentes en Planificación

The Universal Declaration of Human Rights (art. 12), and the ICCPR (art. 17) are the basis for allowing national security interferences with the right to privacy. The UN Economic and Social Council developed these further in the Siracusa principles. Also the Johannesburg principles can be mentioned in this respect. Both principles are discussed here.

5.4.1 Siracusa principles12

The UN Economic and Social Council addresses national security in its’ Siracusa Principles13_,14_.

In article 30, it stresses that “National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.” National security can also not be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exists adequate safeguards and effective remedies against abuse (article 31).

Finally, the Siracusa Principles (art. 32) emphasize that “The systematic violation of human rights undermines true national security and may jeopardize international peace and security. A state responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population.”

5.4.2 Johannesburg principles

In 1995, a group of experts in international law, national security and human rights devel- oped principles based on international and regional law and standards relating to the protec- tion of human rights, evolving state practice (as reflected, inter alia, in judgments of national courts), and the general principles of law recognized by the community of nations (Johan- nesburg principles). Although the principles do not address privacy (focus is on national se- curity, freedom of expression and access to information) they may provide some guidelines how national security relates to other human rights. These principles have been endorsed by the UN Special Reporter on Freedom of Opinion and Expression, in his reports to the 1996, 1998, 1999 and 2001 sessions of the United Nations Commission on Human Rights, and re- ferred to by the Commission in their annual resolutions on freedom of expression every year since 1996 (Article 19 1995, p.1).

12 _{A group of 31 experts in international law, convened by the International Commission of Jurists, the International Asso-}

ciation of Penal law, the American Association for the International Commission of Jurists, the Urban Morgan Institute for Human Rights and the International Institute of Higher Studies in Criminal Sciences, met in Siracusa, Sicily, in 1984 to consider the limitation and derogation provisions of the International Covenant on Civil and Political Rights (website SIM)

13 _{United Nations, Economic and Social Council, U.N. Sub-Commission on Prevention of Discrimination and Protection of}

Minorities

14 _{Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights in}

chapter I. Limitation Clauses, section B. Interpretative Principles Relating to Specific Limitation Clauses, under vi. "national security"

The preamble of the principles recognizes that the most serious violations of human rights and fundamental freedoms are justified by governments as necessary to protect national se- curity.

Principle 1.3 reads:

To establish that a restriction on freedom of expression or information is necessary to pro- tect a legitimate national security interest, a government must demonstrate that:

(a) the expression or information at issue poses a serious threat to a legitimate na- tional security interest;

(b) the restriction imposed is the least restrictive means possible for protecting that interest; and

(c) the restriction is compatible with democratic principles. Thus, it recognizes the principle of subsidiary.

The Johannesburg principles also address legitimate national security interests (Article 19 1995, principle 2):

(a) A restriction sought to be justified on the ground of national security is not le- gitimate unless its genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a mili- tary threat, or an internal source, such as incitement to violent overthrow of the gov- ernment.

(b) In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to sup- press industrial unrest.

5.4.3 The European Court of Human Rights

The ECtHR has ruled that “the mere fact that ‘information’ or ‘ideas’ offend, shock or dis- turb does not suffice to justify that interference [..]” with the right to privacy for national se- curity purposes. However, actions that offend the values of a society and incite to violence to change these values justify measures to protect national security (Loof 2005, p. 338; see also

Sürek § 40).

Under exceptional conditions surveillance of communications is necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime (Klass). Questiaux has argued that “Exceptional circumstances will mean (…) circumstances resulting from temporary factors of a generally political character which in varying degrees involve extreme and imminent danger, threatening the organized existence of a nation, that is to say, the political and social system that comprises as a state” (Questiaux 1982, p.8 cited in Loof 2005, p.32).