Balagtas. SLR Output. the Big Brother Dilemma

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THE BIG BROTHER DILEMMA: CAN FACEBOOK AVERT THE

PIERCING GAZE OF THE UN SECURITY COUNCIL?

CARL EDISONM. BALAGTAS

A REQUIREMENT FOR LAW 119

(SUPERVISED LEGAL RESEARCH & WRITING)

DEAN RAUL PANGALANGAN

UP COLLEGE OF LAW

DILIMAN, QUEZON CITY

FEBRUARY 26, 2014


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THE BIG BROTHER1DILEMMA: CAN FACEBOOK AVERT THE


Carl Edison M. Balagtas

ABSTRACT

This paper seeks to explore the legal and statutory foundations of the Monitoring Group onSomalia and Eritreas, as well as the UN Security Councils power and authority, to compel Facebook to

disclose its users information. Said power and authority will then be pit against the Facebook usershuman right to privacy as protected by Article 12 of the Universal Declaration of Human Rights and theFacebook users right to privacy arising from contract (Facebook Data Policy and User Agreement). Thispaper also concerns itself with possible restrictions on the seemingly unbridled Chapter VII powers of theUN Security Council to invade individuals privacy, particularly those of Facebook and its users,reminiscent of the omnipresence and omnipotence of Big Brother in George Orwelles novel 1984.

The position is taken that the UN Charters purposes and principles serve as the limiters on theChapter VII powers of the UN Security Council. Said purposes and principles of the UN Charter embraceinternational law as a whole, including the existing customary norms in general international law whichthe Universal Declaration of Human Rights forms part of. By this reasoning, the Universal Declaration ofHuman Rights is part of the purposes and principles of the UN Charter from which the UN SecurityCouncil cannot derogate. Thus, Article 12 of the Universal Declaration of Human Rights which containsthe human right of persons to be protected against arbitrary interference in their privacy can be invoked tolimit the UN Security Councils Chapter VII powers. As to who can enforce said restrictions, this papersubmits that it is the International Court of Justice with its implied, but limited, power of judicial review ascould be gleaned from the rulings in the Lockerbie and Namibia decisions.

1Big Brother is a fictional character breathed to life by George Orwell in his novel Nineteen Eighty-

Four. Big Brother is the dictator of a fictional society wherein all persons are under complete and unhindered

surveillance by the totalitarian authorities. Since the novels release, the term Big Brother has successfully

permeated the English lexicon as a synonym for the abuse of government power especially those related to mass

surveillance.


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TABLE OF CONTENTS

I. INTRODUCTION: THE BIG BROTHER DILEMMA 1

II. THE UN SECURITY COUNCIL AND THE MONITORINGGROUP ON SOMALIA AND ERITREA 3United Nations Security Council 3Monitoring Group on Somalia and Eritrea 5

III. THE SOCIAL NETWORK: FACEBOOK 9Facebook Inc. 9Facebook User Statistics 9Facebook Features 10Types of Information Obtained by Facebook 12Facebook Info Utilization 14

IV. CONTRACTUAL RIGHT TO PRIVACY VS. UN SECURITY COUNCIL 15V. UN SECURITY COUNCILS CHAPTER VII POWERS 18VI. ROLE OF THE INTERNATIONAL COURT OFJUSTICE (ICJ) 20

Advisory Jurisdiction 20Limited Judicial Review 20

VII. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 24VIII. CONCLUSION AND RECOMMENDATIONS 27


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THE BIG BROTHER DILEMMA: CAN FACEBOOK AVERT THE


Carl Edison M. Balagtas

The privacy and dignity of our citizens [are] beingwhittled away by sometimes imperceptible steps.Taken individually, each step may be of littleconsequence. But when viewed as a whole, therebegins to emerge a society quite unlike any we haveseen -- a society in which government may intrudeinto the secret regions of a [persons] life.

- Justice William O. Douglas

INTRODUCTION: THE BIG BROTHER DILEMMA

On July 20, 2013, the Monitoring Group on Somalia and Eritrea which was

monitoring the implementation of a UN arms embargo2against Somalia as well as

sanctions against accused pirates and Shebab Islamists submitted a complaint to the

UN Security Council regarding Facebooks refusal to answer inquiries concerning ship

hijackings and hostage-takings alleged to have been and/or are being organized

through said social media.3

The Monitoring Group sanctions investigators claim that Somalia's piracy

business is sustained by supporters and financiers from the government and/or

corporate world "all using their regular occupations or positions to facilitate one or

another network. Investigations conducted by the Monitoring Group have allegedly

confirmed that these myriad facilitators are interlinked through various communication

channels and employ social network services, such as Facebook."4

2Security Council Resolution 1744 dated February 2007 amended the scope of the armsembargo and limited the embargo to non-state actors. This means that the supply of weapons and

military equipment intended solely for the purpose of helping develop Somali security sectorinstitutions is allowed subject to some requirements such as notice to the sanctions committee onSomalia. Come November 2008, Security Council Resolution 1844 was issued. Said resolutionamended the arms embargo to include target entities that violate the arms embargo or obstruct thedelivery of any kind of humanitarian assistance to or in Somalia.

3 Yahoo News, UN experts slam Facebook for Somalia sanctions silence athttp://ph.news.yahoo.com/un-experts-slam-facebook-somalia-sanctions-silence-191438665.html (lastvisited Jan. 20, 2014)

4Id.


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The sanctions investigators claim that despite repeated official correspondence

addressed to Facebook Inc., the corporation has never responded to the Monitoring

Groups requests to discuss information from Facebook accounts belonging to

individuals allegedly involved in hijackings and hostage-takings.

As of this writing, the UN Security Council has not issued any resolution orcomment regarding the matter. This paper seeks to explore the legal and statutory

foundations of the Monitoring Group on Somalia and Eritreas, as well as the UN

Security Councils, power and authority to compel Facebook to disclose its users

information and pit it against the Facebook users human right to privacy as protected

by Article 12 of the Universal Declaration of Human Rights and the Facebook users

right to privacy arising from contract (Facebook Data Policy and User Agreement).

Stated in problem form, the primary issue proposed to be tackled by this paper is:

Does the Monitoring Group on Somalia and Eritrea and/or its creator, the UN Security

Council, have the power and mandate to compel Facebook to divulge its users privateinformation and conversations (1) in violation of the Data Policy and User Agreement

which is a binding contract between Facebook and the individual Facebook users and (2)

in violation of the Facebook users right to privacy as embodied by Article 12 of the

Universal Declaration of Human Rights?

Before we confront the main issue which this paper seeks to address, it is

warranted that we place the Monitoring Group on Somalia and Eritrea, as well as the

UN Security Council from which it derives its authority, in their proper context to

determine the circumstances surrounding their inception, as well as their nature,

purpose, powers, and legal mandate in the international sphere.


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THE UN SECURITY COUNCIL AND THE MONITORINGGROUP ON SOMALIA AND ERITREA

UNITED NATIONS

SECURITY COUNCIL

Mark Imber describes the UN Security Council as follows:

The Security Council is a principal organ of the United Nations (UN).

Under the UN Charter, the Security Council is charged with the primary

responsibility of the maintenance of international peace and security. The charter

also gives the Security Council wide powers under Chapter VI to use diplomatic

means to assist the parties of a dispute to resolve their conflict by peaceful

means. In the event that no peaceful reconciliation is possible, Chapter VII of the

charter also confers on the Security Council the right to define a breach of the

peace, that is to name an aggressor, and thereafter mobilize economic sanctions

and, ultimately, military force against any member state that the Security Council

judges to be a threat to international peace and security. The wider UN

membership of 192 countries agrees to accept and carry out the resolutions

adopted by the Security Council. In this way, the Security Council is credited

with a unique moral and legal authority in the post-1945 construction of

international order.

The Security Council comprises fifteen member states. Five are

permanent members, which have occupied their positions since the founding of

the UN in 1945. The permanent members are: China, France, Russia, the United

Kingdom, and the United States. Ten additional nonpermanent members are

elected by a regional formula and serve a two-year term. The ten regional

members are elected from five groups: five from the African and Asian regions

combined, two from Latin America and the Caribbean, two from Western

Europe, and one from Eastern Europe.

The Security Council operates under a rotating presidency. This

advances monthly by the English-language name of each member. The

presidency is responsible for calling and chairing all meetings of the Security

Council during that month. The UN Secretary-General can also bring matters to

the attention of the Security Council. Resolutions adopted by the Security

Council are binding in international law. Although the charter forbids the UN to

interfere in matters of domestic jurisdiction, this protection does not extend to

conduct that the Security Council, acting under Article 39, judges to be a threat to

international peace and security.


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The adoption of a resolution by the Security Council requires a majority

of at least nine of the fifteen members. However, each of the five permanent

members has veto power over the adoption of any substantive resolution by the

Security Council. The original logic of this provision was to limit the adoption of

resolutions and the potential military commitments entailed to those that had the

consensual support of the five victorious powers of the 1945 settlement. It wasalso intended to prevent any one of them from using the mechanism of the UN to

legitimate a war on each other. The five permanent members also have veto

power over the reform of these entrenched powers. Any reform of the UN

Charter requires a resolution to be adopted by the Security Council and

ratification by the five powers' constitutional processes. In the case of the United

States, this would require a vote of the Senate.

x x x

The Security Council has only been reformed once, by enlargement from

twelve members to its current fifteen members in 1965. Enlargement has beenwidely discussed since 1990, usually in terms of reestablishing the

representational balance to reflect the enlarged third-world membership of the

UN. However, Japan and Germany have been widely promoted as additional

candidates for permanent membership in view of their financial contributions to

the UN. Leading third-world claimants include India and Brazil. Other members

have advanced claims on grounds of population and regional status.

Enlargement is therefore controversial and problematic. The issue has also been

linked to the reform of the veto power. None of the established permanent

members is willing to relinquish or dilute this particular status. Enlargement

might create three categories of membership, with the new permanent members

not having veto powers.5

The UN Security Council is one of the six primary organs of the United Nations6

and as such derives its powers and authority from the UN Charter and norms of jus

cogens.Under the UN Charter, the UN Security Councils primary responsibility is the

maintenance of international peace and security. Article 39, Chapter VII of the UN

Charter in particular gives the Security Council the discretion in the threshold

determination of the existence of a threat to the peace, breach of the peace, or act of

aggression and a broad power to adopt and implement its decisions in order to maintain

the international peace and security. Such [enforcement] measures range from

5 United Nations Security Council." Encyclopedia of Governance. Vol. 2. Thousand Oaks, CA:SAGE Reference, 2007. 1004-1005. Gale Virtual Reference Library. Web. 15 Dec. 2013.

6The UN has six principal organs: the General Assembly (the main deliberative assembly);the Security Council (for deciding certain resolutions for peace and security); the Economic and SocialCouncil (ECOSOC) (for promoting international economic and social co-operation and development);the Secretariat (for providing studies, information, and facilities needed by the UN); the InternationalCourt of Justice (the primary judicial organ); and the United Nations Trusteeship Council(inactive). athttp://www.unaslovenia.org/en/un/organs (last visited Feb. 2, 2014)


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economic and/or other sanctions not involving the use of armed force to international

military action.7

The resort to obligatory sanctions is intended to apply pressure on a State or

entity to comply with the objectives set by the Security Council without resorting to the

use of force. 8 The obligatory sanctions provide the Security Council with anindispensable means to breathe life to its decisions in such a manner that takes full

advantage of the universal character of the United Nations. As a matter of fact, the

Security Council has, countless of times in the past, used the same as an enforcement

tool when peace has been threatened and diplomatic efforts proved unsuccessful. The

range of sanctions employed by the Security Council includes comprehensive economic

and trade sanctions and/or more targeted measures such as arms embargoes, travel

bans, financial or diplomatic restrictions.9

MONITORING GROUP ON

SOMALIA AND ERITREA

The United Nations website narrates the legal and historical foundations of the

Monitoring Group on Somalia and Eritrea as follows:

The Security Council Committee established pursuant to resolution 751

(1992) concerning Somalia was first created on 24 April 1992 to oversee the

general and complete arms embargo imposed by Security Council resolution 733

(1992) and to undertake the tasks set out by the Security Council in paragraph 11

of resolution 751 (1992) and, subsequently, in paragraph 4 of resolution 1356

(2001) and paragraph 11 of resolution 1844 (2008).

Following the adoption of resolution 1907 (2009), which imposed a

sanctions regime on Eritrea (described further below) and expanded the

Committee's mandate, the Committee changed its name on 26 February 2010 to

Security Council Committee pursuant to resolution 751 (1992) and 1907 (2009)

concerning Somalia and Eritrea. The expanded mandate of the Committee is

delineated in paragraph 18 of resolution 1907 (2009), paragraph 13 of resolution

2023 (2011) and paragraph 23 of resolution 2036 (2012).

The Security Council first imposed a general and complete arms

embargo on Somalia on 23 January 1992 with the adoption of resolution 733

(1992). Subsequent resolutions elaborated, amended and introduced exemptions

to arms embargo on Somalia. In resolution 2111 (2013), adopted on 24 July 2013,

7 United Nations, Security Council Sanctions Committees: An Overview athttp://www.un.org/sc/committees/

8Supra.9Supra.


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the Security Council consolidated the exemptions to the arms embargo on

Somalia and Eritrea in one single resolution.

x x x

On 22 July 2002, a Panel of Experts on Somalia was established with the

adoption of resolution 1425 (2002) to generate information on violations of thearms embargo with a view toward strengthening it. The Panel of Experts was

succeeded by theMonitoring Group on Somalia established pursuant to

resolution 1519 (2003) to focus on the ongoing arms embargo violations.

Subsequent resolutions extended and expanded the mandate of the Monitoring

Group. After the adoption of resolution 1907 (2009) the Monitoring Group

changed its name to Monitoring Group on Somalia and Eritrea. The mandate of

the Monitoring Group currently in existence was extended until 25 November

2014 by resolution 2111 (2013). Its mandate is delineated in paragraph 13 of

resolution 2060 (2012), paragraph 41 of resolution 2093 (2013), and paragraph 19

of resolution 2111 (2013).10

Paragraph 13 of resolution 2060 (2012) enumerates the following as the mandate

of the Monitoring Group on Somalia and Eritrea:

(a) To assist the Committee in monitoring the implementation of the measures

imposed in paragraphs 1, 3 and 7 of 1844 (2008), including by reporting any

information on violations; to include in its reports to the Committee any

information relevant to the potential designation of the individuals and entities

described in paragraph 1 above;

(b) To assist the Committee in compiling narrative summaries, referred to in

paragraph 14 of resolution 1844 (2008), of individuals and entities designatedpursuant to paragraph 1 above;

(c) To investigate any seaport operations in Somalia that may generate revenue

for Al-Shabaab, an entity designated by the Committee for meeting the listing

criteria in resolution 1844 (2008);

(d) To continue the tasks outlined in paragraphs 3 (a) to (c) of resolution 1587

(2005), paragraphs 23 (a) to (c) of resolution 1844 (2008), and paragraphs 19 (a) to

(d) of resolution 1907 (2009);

(e) To investigate, in coordination with relevant international agencies, allactivities, including in the financial, maritime and other sectors, which

generate revenues used to commit violations of the Somalia and Eritrea arms

embargoes;

10Supra.


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(f) To investigate any means of transport, routes, seaports, airports and other

facilities used in connection with violations of the Somalia and Eritrea arms

embargoes;

(g) To continue refining and updating information on the draft list of those

individuals and entities that engage in acts described in paragraph 1 above,inside and outside Somalia, and their active supporters, for possible future

measures by the Council, and to present such information to the Committee as

and when the Committee deems appropriate;

(h) To compile a draft list of those individuals and entities that engage in acts

described in paragraphs 15 (a)-(e) of resolution 1907 (2009), inside and outside

Eritrea, and their active supporters, for possible future measures by the

Council, and to present such information to the Committee as and when the

Committee deems appropriate;

(i) To continue making recommendations based on its investigations, on theprevious reports of the Panel of Experts (S/2003/223 and S/2003/1035)

appointed pursuant to resolutions 1425 (2002) and 1474 (2003), and on the

previous reports of the Monitoring Group (S/2004/604, S/2005/153,

S/2005/625, S/2006/229, S/2006/913, S/2007/436, S/2008/274, S/2008/769,

S/2010/91 and S/2011/433) S/RES/2060 (2012) 12-43897 5 appointed pursuant

to resolutions 1519 (2003), 1558 (2004), 1587 (2005), 1630 (2005), 1676 (2006), 1724

(2006), 1766 (2007), 1811 (2008), 1853 (2008), 1916 (2010) and 2002 (2011);

(j) To work closely with the Committee on specific recommendations for

additional measures to improve overall compliance with the Somalia and Eritrea

arms embargoes, as well as the measures imposed in paragraphs 1, 3 and 7 ofresolution 1844 (2008), and paragraphs 5, 6, 8, 10, 12 and 13 of resolution 1907

(2009) concerning Eritrea;

(k) To assist in identifying areas where the capacities of States in the region can

be strengthened to facilitate the implementation of the Somalia and Eritrea arms

embargoes, as well as the measures imposed in paragraphs 1, 3 and 7 of

resolution 1844 (2008), and paragraphs 5, 6, 8, 10, 12 and 13 of resolution 1907

(2009) concerning Eritrea;

(l) To provide to the Council, through the Committee, a midterm briefing within

six months of its establishment, and to submit progress reports to the Committee

on a monthly basis;

(m) To submit, for the Security Councils consideration, through the Committee,

two final reports; one focusing on Somalia, the other on Eritrea, covering all the


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tasks set out above, no later than thirty days prior to the termination of the

Monitoring Groups mandate.11(emphasis mine)

Security Council Resolution 1744 dated February 2007 amended the scope of the

arms embargo and limited the embargo to non-state actors. This means that the supply

of weapons and military equipment intended solely for the purpose of helping developSomali security sector institutions is allowed subject to some requirements such as notice

to the sanctions committee on Somalia. This state of affairs was altered by Security

Council Resolution 1844, issued in November 2008, which amended the arms embargo

to include target entities that violate the arms embargo or obstruct the delivery of any

kind of humanitarian assistance to or in Somalia.

In light of these changes, clearly, paragraph 13(e) of Resolution 2060 (2012) is

broad enough to empower the Monitoring Group on Somalia and Eritrea to investigate

correspondences in Facebook relating to ship hijackings and hostage-takings since these

activities fall under the phrase all activities in the financial, maritime and other sectors,which generate revenues used to commit violations of the Somalia and Eritrea arms

embargoes12. Ship hijackings and hostage-takings are obviously endeavors which are

induced by a profit motive. Furthermore, the alleged conversations with accomplices in

the government and/or corporate world are also encompassed for it is possible that

these supporters act as financiers and therefore such conversations can be considered as

activities which generate revenues (e.g. through solicitations and donations) to commit

violations of the Somalia and Eritrea arms embargo. Such inquiry into correspondences

in Facebook concerning ship hijackings, hostage-takings, and violations of the arms

embargo between Somalia and Eritrea may also find basis in paragraphs 13(g) and 13(h)

which require Monitoring Group to complete its draft list of individuals that may besubject to future sanctions by the UN Security Council.

However, despite the Monitoring Group on Somalia and Eritrea having the

competence to investigate communications, such as those contained in Facebook,

regarding ship hijackings, hostage-takings, and violations of the arms embargo between

Somalia and Eritrea, nowhere in Security Council Resolutions 2060 and 1744 which

created it is it given the coercive power to take measures to compel any person, natural

or juridical, to divulge such communications. The fact that the experts of the Monitoring

Group on Somalia and Eritrea went to the UN Security Council after repeated failed

attempts to get Facebook to cooperate proves this point. Facebooks refusal, therefore, tosurrender such information was warranted.

11 UN Security Council Resolution 2060 (2012) athttp://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Somalia%20S%20RES%202060.pdf(last viewed Feb. 4, 2014)12Paragraph 13(e), Resolution 2060(2012).


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THE SOCIAL NETWORK: FACEBOOK

FACEBOOK INC.

Incorporated under the laws of Delaware in July 2004, Facebook Inc. is currently

biggest online international social networking service in the world. Its name is derivedfrom a colloquialism of the directory handed out to American university

undergraduates back when the prototypes for the said platform were being introduced

by Mark Zuckerberg and his Harvard University roommates Eduardo Saverin, Andrew

McCollum, Dustin Moskovitz, and Chris Hughes. In its initial stages, the membership of

the website was limited to Harvard students but was later expanded to include colleges

in the Boston area, the Ivy League, Stanford University and other universities. Today,

Facebook allows anyone who claims to be at least 13 years old to become a registered

user of the website as long as s/he provides a valid e-mail address.

Facebooks main headquarters is located at 1601 Willow Road, Menlo Park,California. Its business is primarily conducted through its website www.facebook.com.

Facebooks administration articulates its mission statement in the following manner:

Facebooks mission is to give people the power to share and make the world

more open and connected. People use Facebook to stay connected with friends

and family, to discover whats going on in the world, and to share and express

what matters to them.13

FACEBOOK USER

STATISTICS

Facebook reported that it had 1.11 billion monthly active users worldwide as of

March 2013,.Regarding Facebook's mobile usage, per an analyst report in early 2013,

there are 192 million Android users, 147 million iPhone users, 48 million iPad users and

56 million messenger users, and a total of 604 million mobile Facebook users. It has been

estimated that 1 out of every 7 people on Earth is on Facebook.14

The number of Facebook users in the Philippines ranks 8 th in the world. As of

this writing, there are 30,214,140 Facebook users in the Philippines: 43% of which are

male, while 46% are female.15 There are 33,600,000 internet users in the Philippines in

2013. This means that 89.92% of Philippine users or almost 9 in every 10 Filipinos who

13Facebook, Key Facts at http://newsroom.fb.com/Key-Facts (last viewed Feb. 9, 2014)14Supra.15Maximilian Nierhoff, Facebook Country Stats February 2013 Top 10 Countries Lose Users Due

To The Ongoing Account Cleanupat http://www.quintly.com/blog/2013/02/facebook-country-stats-february-2013-top-10-countries-lose-users/ (last viewed Feb. 9, 2014)


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have access to the internet maintain a Facebook account.16 With respect to the entire

Filipino population in 2013 which is 103,775,002 then 29.12% of the entire Philippine

population or approximately 3 in every 10 Filipinos have Facebook accounts. 17

It was reported that Facebook had around 180 petabytes of data at the end of

2012 and it continues to grow by over half a petabyte every 24 hours.18

FACEBOOKFEATURES

Registration & Connecting

Although the website is free to use, registration is a condition precedent for one

to be able to enjoy the services of Facebook. Once registered, the user is prompted to

construct his/her profile and add other users as his or her friends. This is done

through the act of friending.

The act of "friending" in Facebook pertains to the deed of sending another user a

friend request which is, stripped down to its barest essentials, a proposal to link ones

profile with another. If the receiving party approves the friend request, they will become

friends. In theory, a user is expected to only add or accept a friend request if he or she

is actually familiar with the other person and/or is comfortable with sharing his or her

user data with the person. This is because the primary purpose of becoming friends in

Facebook is to increase the amount of user data that becomes accessible to both parties

because Facebook developed profiles in such a way as to have advanced privacy settings

so that the user may confine accessibility of the content he or she posts to a certain class

or list of users such as close friends, friends, acquaintances, etc.

Once friends, the users may classify themselves further as acquaintances or

close friends. The receiving party may also opt to decline the friend request or hide it

from view without deleting it by selecting the "Not Now" feature. Friend requests may

be cancelled by the sender any time so long as it has not been accepted by the other

party.

Aside from having friends, a user may also create or join common-interest

Facebook groups and/or fan pages corresponding to ones workplace, school, college, or

16Gethooked,Facebook Reaches 30 Million Users in the Philippines athttp://www.gethooked360.com/facebook-reaches-30-million-users-in-the-philippines/ (last viewedFeb.9, 2014)

17Internet World Stats, Asiaat http://www.internetworldstats.com/asia.htm#ph (last viewedFeb. 9, 2014)

18Supra.


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other characteristics. Through these Facebook pages, the user may interact with other

users without the need of becoming friends.

News Feed

Facebooks News Feed displays a predetermined set of information updatesabout other users activities which includes among others their status updates, profile

changes, upcoming events, and birthdays. The News Feed also displays some sponsored

links and advertisements from time to time as Facebook may determine in its discretion.

The News Feed may be customized to show only top stories (those stories that have

garnered much attention and discussion) or most recent stories in one feed depending

on the users News Feed settings.

Recent developments in Facebook have given its users the ability to control, to a

certain extent, through customizable privacy settings, some types of information from

being automatically shared with friends and at the same time filter the data receivedfrom such friends.

Timeline

Since December 15, 2011, the Facebook Timeline replaced the Facebook Wall as

the virtual space in which all the data of a Facebook user is displayed and organized.

The Timeline houses the photos, videos, status updates, and other posts of any Facebook

user and such data are published chronologically.Posts and events may be hidden or

exhibited at the option of the user. Users can also set the Timelines macro privacy

settings to limit who can view their data or use its micro privacy settings to hide some

content from certain users. Aside from the user, the users friends also have the ability to

post on the formers Timeline which the user may delete or hide at his or her discretion.

Messaging and Inbox

Since the time of its inception, Facebook has permitted users to send private

messages to each other. A user has the ability to send a message to any number of

his/her friends at any one time. Deleting a message from one's inbox does not delete it

from the inbox of other users, thus disabling a sender to redo a message sent by him or

her.

On November 15, 2010, an innovative messaging platform codenamed "Project

Titan" was launched by Facebook. The said system allows users to directly communicate

with each other via Facebook using several different methods (including a special email

address, text messaging, or through the Facebook website or mobile app). The novelty


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lies in the fact that no matter what method is used to convey a message, they are all

contained within single threads in a unified inbox which makes it easier for the user to

keep track of the many different conversations. It also comes with adjustable privacy

settings which give users the option to limit whom they can receive messages from.

Voice and Video Calls

Voice calls were introduced by Facebook in April 2011. This advanced messaging

feature gives the user the ability to add his or her voice to the Facebook Chat as well as

the capacity to leave voice messages on Facebook. A few months after the introduction

of voice calls, Facebook partnered with Skype. The team up resulted in the improvement

of the voice call feature to such an extent as to allow one-to-one real-time video calls

between users.

TYPES OF INFORMATION

OBTAINED BY FACEBOOK

There are different types of information obtained by Facebook. According to

Facebook, they are:

Private Information

1) Registration information: When a user signs up for Facebook, the user is

required to provide information such as his name, email address, birthday,

and gender. In some cases, he may be able to register using other

information, like ones telephone number.

2) Information the user chooses to share: The information obtained also

includes the information the user chooses to share on Facebook, such as

when the user posts a status update, uploads a photo, or comments on a

friend's story. Other information which fall under this category are those the

user opts to share when he or she communicate with Facebook, such as when

the user contacts Facebook using an email address, or when user takes an

action, such as when he or she adds a friend, likes a Page or a website, adds a

place to his or her story, uses Facebooks contact importers, or indicates his

or her relationship status.

3) Information others share about the user: Facebook obtains information about

the user from his or her friends and other members of his network, such as

when they upload the users contact information, post a photo of the user,

tag the user in a photo or status update, or at a location, or add the user to a

group.


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4) Other information we receive about the user: Facebook also receives other

types of information about the user which includes the following:

! Data about the user whenever the user runs Facebook, such as when

the user views another person's timeline, sends or receives a

message, searches for a friend or a Page, clicks on, views or

otherwise interacts with things, uses a Facebook mobile app, or

makes purchases through Facebook.

! Additional related data (or metadata), such as the time, date, and

place where the photo or video posted by the user was taken.

! Data from or about the computer, mobile phone, or other devices the

user employs to install Facebook apps or to access Facebook,

including when multiple users log in from the same device. This

may include network and communication information, such as the

users IP address or mobile phone number, and other information

about things like the users internet service, operating system,location, the type (including identifiers) of the device or browser the

user engages, or the pages the user visits. For example, Facebook

may get the users GPS or other location information so that

Facebook can tell you if any of your friends are nearby, or we could

request device information to improve how our apps work on the

users device.

! Data whenever the user visits a game, application, or website that

uses Facebook Platform or visit a site with a Facebook feature (such

as a social plugin), sometimes through cookies. This may include the

date and time the user visits the site; the web address, or URL, the

user is on; technical information about the IP address, browser and

the operating system the user uses; and, if the user is logged in to

Facebook, the users User ID.

! Data from Facebooks affiliates or advertising partners, customers

and other third parties that helps Facebook deliver ads, understand

online activity, and generally make Facebook better. For example, an

advertiser may relay information about the user (like how you

responded to an ad on Facebook or on another site) in order to

measure the effectiveness of - and improve the quality of - ads.

Public Information

According to Facebook, the phrase "public information" (also referred to as

"Everyone information"), refers to the information the user chooses to make

public, as well as information that is always publicly available. These include,

among other things, types of stories that are always public stories such as when

the user posts on a Page's wall or comments on a news article; the users name;


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profile picture; cover photo; networks; gender; username; user ID; and status

updates, pictures, and videos whose privacy settings are set to public.

Information made public is available to anyone including people off

Facebook. Making information public also means that the information:

! can be associated with the specific user (i.e., name, profile pictures,

cover photos, timeline, User ID, username, etc.) even off Facebook;

! can show up when someone does a search on Facebook or on a

public search engine;

! will be accessible to the Facebook-integrated games, applications,

and websites the user and users friends use; and

! will be accessible to anyone who uses Facebooks APIs.19

FACEBOOK INFOUTILIZATION

According to Facebooks page, it uses the information it retrieves about the users

in connection with the services and features it provides to the users, their friends,

Facebook partners, the advertisers that purchase ads on Facebook, and the developers

that build the games, applications, and websites the users use. Facebook claims that it

only provides data to its advertising partners or customers after it has removed the

users name and any other personally identifying information from it, or have combined

it with other people's data in a way that it no longer personally identifies the user.

According to Facebook, it also uses the collected data:

! as part of its efforts to keep Facebook products, services and integrations safe

and secure;

! to protect Facebook's or others' rights or property;

! to provide users with location features and services;

! to measure or understand the effectiveness of ads;

! to make suggestions to users on Facebook;

! for internal operations, including troubleshooting, data analysis, testing,

research and service improvement.20

19 Facebook, Information We Receive and How it is Used athttps://www.facebook.com/about/privacy/your-info(last viewed Feb. 9 2014)

20Supra.


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CONTRACTUAL RIGHT TO PRIVACYVS.

UN SECURITY COUNCIL

The Facebook User Agreement is the written contract between Facebook and theFacebook user; it encompasses Facebooks Data Policy. Theoretically, the Facebook user

is expected to have read and agreed to such Terms and Conditions of Use before he or

she finalized her Facebook registration. By the act of finalizing his or her Facebook

registration, the user is deemed to have accepted the entire Facebook User Agreement as

written and without exceptions and thus bound by it in its entirety.

Facebooks Data Policy states that the ownership of all the information it receives

from its users always remain with the respective users. Facebook claims that it wont

share with third parties any information it received from a user unless it has:

!

received the users permission; or

! given the user notice, such as telling the user about it in the policy; or

! removed the users name and any other personally identifying

information from it.21(emphasis mine)

In accordance with the second exception, Facebook has provided in its Data

Policy a provision which is of crucial relevance to the legal problem at hand that we

shall hereby quote it in full. To wit:

RESPONDING TO LEGAL REQUESTS AND PREVENTING HARM

We may access, preserve and share your information in response to a

legal request (like a search warrant, court order or subpoena) if we have

a good faith belief that the law requires us to do so. This may include

responding to legal requests from jurisdictions outside of the United

Stateswhere we have a good faith belief that the response is required by

law in that jurisdiction, affects users in that jurisdiction, and is consistent

with internationally recognized standards. We may also access, preserve

and share information when we have a good faith belief it is necessary

to: detect, prevent and address fraud and other illegal activity; to protect

ourselves, you and others, including as part of investigations; or to

prevent death or imminent bodily harm. Information we receive aboutyou, including financial transaction data related to purchases made with

Facebook, may be accessed, processed and retained for an extended

period of time when it is the subject of a legal request or obligation,

governmental investigation, or investigations concerning possible

21Supra.


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violations of our terms or policies, or otherwise to prevent harm. We also

may retain information from accounts disabled for violations of our

terms for at least a year to prevent repeat abuse or other violations of our

terms.22

This means that Facebook will share a users information, even without the

users consent, if it believes in good faith that it is lawful and required by law to comply

with a legal request, local or international. Facebook qualified the term legal

request through an enumeration of what it considers as examples of legal requests.

Facebooks enumeration includes the following: search warrant, court order, and

subpoena. Expressio unios est exclusion alterius. By implication from the above

enumeration, the term legal request as used in Facebooks Data Policy is confined to

mean those that are issued by a court.

Is the UN Security Council a court?It is submitted that it is not.

Through the years, the UN Security Councils powers have expanded as

compared to how it was originally conceptualized. At present, it can be argued that the

UN Security Council has begun to exercise judicial functions evidence of which is the

fact that the UN Security Council established international tribunals with criminal

jurisdiction over individuals, created exceptions to the jurisdiction of the International

Criminal Court, ruled on border disputes between Iraq and Kuwait and established a

compensation commission to award damages suffered due Iraqs invasion, set up an

international criminal investigation commission23, passed sanctions against people and

nations, and declared certain acts as illegal.

This apparent steady increase in the scope of the UN Security Councils powers

raises a number of controversies regarding the UN Security Councils competence, the

applicable safeguards, and of the Security Councils relationship with respect to other

bodies of the United Nations such as the International Court of Justice.

It must be remembered, however, that the UN Security Councils powers are still,

and always will be, subject to the UN Charter and norms of jus cogens. Despite the UN

Charters inconclusiveness as to the UN Security Councils competence to assume

judicial functions incidental to carrying out its specific duties under its primary

responsibility to maintain international peace and security, it is clear that the UN

Charter establishes the International Court of Justice as the principal judicial organ of

22 Facebook, Some Other Things You Need to Know athttps://www.facebook.com/about/privacy/other (last visited Feb. 9, 2014)

23 Simon Chesterman, The UN Security Council and the Rule of Law athttp://ssrn.com/abstract=1279849(last visited Feb. 9, 2014)


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the UnitedNations.24The mere exercise of quasi-judicial functions does not make the

UN Security Council a court. At most, the UN Security Council is only a quasi-judicial

body.

As a consequence, even if the UN Security Council acts on the complaint filed by

the Monitoring Group on Somalia and Eritrea and issues an order in favor of the latter,the exception clause contained in Facebooks Data Use policy cannot serve as

justification for Facebook to expose its users data since the UN Security Council is not a

court and thus its requests/demands for information do not come within the scope of

the term legal requests as contemplated in Facebooks Data Use policy. Therefore, if

Facebook is to be compelled if it can be compelled at all to surrender its users

information then it should find justification elsewhere; in particular, the UN Security

Councils powers under Chapter VII of the UN Charter.

24UN CHARTER art. 92.


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UN SECURITY COUNCILS CHAPTER VII POWERS

The UN Charter bestows upon the UN Security Council, through its Article 39,

the discretion in the threshold determination of the existence of a threat to the peace,

breach of the peace, or act of aggression and the power to adopt and implement

enforcement measures to maintain or restore international peace and security. Such

breadth of powers is due to the desirability of a swift and effective response of the UN

Security Council to any threat to peace and security that may befall the international

community. To be able to respond as quickly as possible to the needs of any emergency,

the UN Security Council needs to have broad measures to be available at its fingertips

whenever the need arises and on a case to case basis the exercise of which is with as little

interference from other institutions as possible. This precludes in general the application

of safeguards that would be expected of domestic and international courts.25This is also

the reason why it has been generally held that no judicial review is available against the

UN Security Councils Chapter VII powers.26

Applied to the problem at bar, the wording of Article 39, Chapter VII of the UN

Charter is broad enough so as to allow the characterization by the UN Security Council

of the Facebook conversations concerning ship hijackings, hostage-takings, and

violations of the arms embargo between Somalia and Eritrea as a threat to the peace

and security of the international community. If indeed the UN Security Council chooses

to characterize said Facebook conversations concerning ship hijackings, hostage-takings,

and violations of the arms embargo between Somalia and Eritrea as a threat to the

peace and security of the international community then this will give the UN Security

Council justification to impose on Facebook, if Facebook remains adamant in its refusal

to divulge its users information, such measures ranging from targeted obligatory

economic and/or other sanctions not involving the use of armed force to coercive

military action until Facebook complies. Against this, Facebook users contractual right

to privacy will not hold water.

However, despite the absurd scope of its Chapter VII powers, the UN Security

Council cannot exercise its discretion arbitrarily for such whimsical display of acumen

may lessen its credence and its perceived authority within the international community.

At present, there is no clear and transparent procedure as to how the Security Council

proceeds with the determination of the presence of a threat to the peace. Neither is

there a clear and definite check on the legality of the methods the UN Security Council

will implement once it determines that there is indeed a threat to the peace.

25Supra.26Id.


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In relation to the problem at bar, it is my submission that despite not being a

court, the UN Security Council will benefit if it adopts and applies as its own procedure,

or incorporates into its existing one, the concept of probable cause as well as the other

requisites for the issuance of a valid search warrant27when it is called upon to decide

cases as that of Facebook where the right to privacy of individuals is at risk of being

encroached upon by the exercise of its Chapter VII powers. The demand on Facebook todivulge its users information is tantamount a search and seizure. Without determining

the presence of a probable cause that a certain Facebook user contains critical

information which constitutes a threat to international peace, then any unfounded

forceful demand on Facebook to reveal said users information would be nothing more

than mere fishing expeditions.

By accepting the above submission, the UN Security Council will be able to

avoid the surrender, no matter how miniscule, of any of its authority to determine its

own competence and authority while at the same time enabling it to increase the

credence of its decisions as a result of a clearer and fairer procedure. Ultimately, thesame will give rise to more humane courses of action that are consistent with the

principles of the UN Charter and international law.

If, on the other hand, the UN Security feels it too cumbersome to determine the

existence of probable cause on its own, the second best option would be to send a

request to the International Court of Justice for an advisory opinion on the matter. 28This

is entirely in accord with the original intention of the framers of the UN Charter that

being co-equal organs of the United Nations, the UN Security Council and International

Court of Justice should assist each other, as much as possible, whenever the opportunity

arises. In the eloquent words of Judge Lachs in his separate opinion in the LockerbieIncident Cases: "One may therefore legitimately suppose that the intention of the

founders was not to encourage a blinkered parallelism of functions but a fruitful

interaction.29

27For a comprehensive discussion of probable cause and the requisites for the issuance of a valid

search warrant, see Abuan vs. People, G.R. No. 168773, October 27, 2006.28 It is true that the UN Security Council has the option to create a new, ad hoc institution to takecognizance of such matters as that concerning Facebook. This power of the UN Security Council to create a

tribunal was confirmed by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the 1995

Tadic case. However, not only has the exercise of this power often been ineffective, it is also inefficient,

impractical, and contributes to the fragmentation of international law. Such course of action may also give rise to

tension between the UN Security Council, its institutional creation, and the International Court of Justice.29Libya v. U.S., 1992, International Court of Justice.


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ROLE OF THE INTERNATIONAL COURT OFJUSTICE (ICJ)

ADVISORY JURISDICTION

The UN Charter provides a unique and crucial role for the International Court ofJustice by granting it advisory jurisdiction in certain circumstances. Article 96 of the UN

Charter provides:

1. General Assemblyor the Security Councilmay request the International Court

of Justice to give an advisory opinion on any legal question.

2. Other organs of the United Nations and specialized agencies, which may at

any time be so authorized by the General Assembly, may also request an

advisory opinion of the Court on legal questions arising within the scope of their

activities.(emphasis mine)

It is clear that the UN Security Council is entitled to request an advisory opinion

because not only is it given by the UN Charter the standing to do so, but the

determination of probable cause for the issuance of a valid search warrant, as in this

case of Facebook, is also a legal question. By seeking an advisory opinion from the

International Court of Justice, the decision-making of the UN Security Council prior to

the issuance of a resolution will be greatly expedited due to the fact that such

determination is already within the expertise of the former. Further benefits include the

increase in the perceived authority of the UN Security Councils resolution due to the

cloak of legality vested by the advisory opinion of the International Court of Justice, and

more humane decisions that are consistent with the principles of the UN Charter andinternational law.

Seeking such advisory opinion is a great option for the UN Security Council for

the said opinion, as its name suggests, is only advisory in nature and therefore not

binding on the UN Security Council unless it resolves to abide by it. Ergo, the UN

Security Council will still possess all its powers under Chapter VII without diminution

and exercise such without any hindrance from the International Court of Justice as the

circumstances may require.

LIMITED JUDICIAL REVIEW

The UN Charter does not provide any explicit mandate for the International

Court of Justice to exercise judicial review and determine the legality of the UN Security

Councils resolutions and decisions taken under Chapter VII. This is further complicated

by the fact that the UN Charter lacks separation of powers: although the UN Security


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Council is the primary quasi-political organ while the International Court of Justice is

the primary judicial organ, both are co-equal neither are subordinate nor superior to

the other and nothing precludes one from being a secondary organ with respect to

the exercise of the primary functions of another especially in cases concerning the gray

areas of international law. Furthermore, under the UN Charter, each UN organ

determines the scope of its own competence. Thus, it appears that the general rule is thatthe actions, decisions, or resolutions of the UN Security Council are not reviewable by

the International Court of Justice.

The reason behind omitting any explicit reference in the UN Charter as to the

existence of the power of judicial review on the part of the International Court of Justice

to determine the legality of the UN Security Councils exercise of its Chapter VII powers

is that the UN Security Council must act with significant alacrity in collective response

situations. To be able to do just that, the UN Charter made it possible for the UN

Security Council to avoid being hindered by legal considerations and processes in

confronting matters requiring utmost urgency such as when there is a threat to thepeace.

Nevertheless, "the Court [should] not allow the fact that a dispute is possessed of

both political and legal aspects [to] prevent it from examining the legal questions that

are involved.30 The rulings in cases brought before the International Court of Justice

imply that there is wiggle room, although limited, for the exercise of judicial review over

the acts of the UN Security Council in order to determine if the action taken by the UN

Security Council under Chapter VII is a complete disregard of the purpose and

principles embraced by the UN Charter. The Lockerbie Incident Cases serves as the

landmark case in this regard.31

In 1992, Libya applied to the International Court of Justice for provisional

measures to protect its rights which were allegedly violated by the threat of economic

sanctions by the United States and the United Kingdom. The issue revolved around the

fact that the threatened economic sanctions were with the blessings of the UN Security

Council, through the exercise of its UN Charter Chapter VII powers, and thus the

possibility of a conflict between the Chapter VII functions of the UN Security Council

and the judicial function of the International Court of Justice presented itself.

With eleven votes to five, the International Court of Justice ruled that it lackedprima facie jurisdiction to grant Libyas requested provisional measures because

30Professor Rosenne as quoted in Scott S. Evans, The Lockerbie Incident Cases: Libyan-SponsoredTerrorism, Judicial Review and the Political Question Doctrine athttp://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1434&context=mjil (lastvisited Feb. 9, 2014).

31Libya v. U.S., 1992, International Court of Justice.


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according to Article 103 of the UN Charter, obligations of the Member States arising

from the UN Charter prevails over any other conflicting treaty obligations prior or

subsequent thereto. Therefore, even if the rights claimed by Libya were valid under the

Montreal Convention, invocation of such rights in its application for provisional

measures wasprima facieregarded as inappropriate since said economic sanctions were

ordered by the UN Security Council whose binding decisions Libya, as a Member State,is under the obligation to abide by32.

In 1998, the International Court of Justice declared that Libyas application is

admissible by it in order to decide the legal question concerning the legal rights of Libya

arising from the Montreal Convention. However, an adjudication based on the merits

had been precluded by the eventual settlement effected in 1998 by the parties to the case.

An absolute answer to the question Can the International Court of Justice rule,

according to the limits as set by the UN Charter, on the actions taken by the UN Security

Council and determine if such actions are intra vires or ultra vires? has therefore evaded

the international legal community.

The Lockerbie Incident Cases also leaves hanging the question of the extent to

which binding decisions of the UN Security Council may interfere with domestic law.

Libyans constitutional law, for example, prohibits the extradition of Libyan nationals.33

In the Lockerbie incident case, even if the UN Security Councils binding decision

trumped the rights of Libya arising out of the Montreal Convention, it is obvious that

such binding decision of the UN Security Council is still in conflict with Libyas

constitutional law. The International Court of Justice, through Judge Shahabuddeen,

declared that the prohibitions under the domestic law of a Member State are not a valid

defense for inability to comply with a treaty such as the UN Charter. 34 But does thismean that the UN Security Council gains unbridled authority and discretion to encroach

on the legal rights of its Member States just by invoking Chapter VII of the UN Charter?

[I]s there any point beyond which a legal issue may properly arise as to the competence

of the Security Council to produce such overriding results? If there are any limits, what

are those limits and what body, if other than the Security Council, is competent to say

what those limits are?35

In response to Judge Shahabuddeens questions, many international lawyers and

jurists have argued, as I argue it again now, that a resolution of the UN Security Council

32UN CHARTER art. 10333Scott S. Evans, The Lockerbie Incident Cases: Libyan-Sponsored Terrorism, Judicial Review and the

Political Question Doctrine athttp://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1434&context=mjil (lastvisited Feb. 9, 2014).

34Id.35Supra.Separate Opinion of Judge Shahabuddeen.


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may be challenged through the International Court of Justice if such resolution is a

blatant disregard of the purposes and objectives of the UN Charter as well as existing

principles of international law and jus cogens.36Such are the limits to the exercise by the

UN Security Council of its powers under Chapter VII and it is my claim that it is the

International Court of Justice which has competence, although limited, to determine

what those limits are.

While the International Court of Justice was not explicitly given the power to

decide, on its own volition, whether it could rule upon the legality of UN Security

Council resolutions stemming from its Chapter VII powers despite the involvement of a

legal question, it is also plain as day that such power was not expressly denied to the

International Court of Justice. The lack of an express power of review in the Charter is

not determinative. What is more important is the lack of an express prohibition against

engaging in judicial review. Since the Charter does not specifically deny judicial review

by the Court, a judicial review mechanism may be developed through practice.

However, that practice should be very restricted, and limited only to fundamental legalquestions.37

A case in point would be the Namibia casewhere the International Court of Justice

declared that it possessed neither the power of judicial review nor appeal with respect

to the decisions of the UN Security Council.38But instead of dismissing the request for

an advisory opinion, the International Court of Justice proceeded to ultimately deal with

the procedural validity of the contested UN Security Council resolutions. 39 Such

actuation of the International Court of Justice hints that there is an implied power of

judicial review vested in it in the exercise of its judicial function. However, absent any

concrete legal basis, the existence of a real power of judicial review on the part of theInternational Court of Justice will remain to be the subject of controversy and heated

debates. Until and unless a more definite declaration crops up in future case, this issue

will remain open for argument in favor of either side.

Until a definite answer comes, I will continue to share the perceived need for a

judicial safeguard against completely politically motivated decisions of the Security

Council which derogate from the purposes and principles embraced in the UN Charter

and customary international law. As such, I shall persist in arguing in favor of the

existence of the International Court of Justices implied power of judicial review with

respect to decisions of the UN Security Council instigated under Chapter VII of the UNCharter.

36Supra.37Supra.38Supra.39Id.


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THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The UN Security Council is one of several bodies created under the UN Charter.

It is not the United Nations itself but a mere fragment of it: co-equal with the other

fragments such as the International Court of Justice and the General Assembly. All parts

must exist in harmony with one another for they are but one entity: a contradiction

cannot exist within oneself lest it destroys one from within. And how can internal

conflict be avoided? By, first and foremost, ensuring that each body acts according to the

purposes and principles in the creation of the United Nations as embodied in the UN

Charter. The said purposes and principles of the Charter embrace international law as a

whole, including the existing customary norms in general international law.40Since

customary international law is embraced by the purposes and principles of the UN

Charter, then surely it embraces the Universal Declaration of Human Rights as well

since it is arguably part of customary international law.

The Universal Declaration of Human Rights has been described as follows by the

United Nations website:

The Universal Declaration of Human Rights is generally agreed to be the

foundation of international human rights law. Adopted in 1948, the UDHR has

inspired a rich body of legally binding international human rights treaties. It

continues to be an inspiration to us all whether in addressing injustices, in times

of conflicts, in societies suffering repression, and in our efforts towards achieving

universal enjoyment of human rights.

It represents the universal recognition that basic rights and fundamentalfreedoms are inherent to all human beings, inalienable and equally applicable to

everyone, and that every one of us is born free and equal in dignity and rights.

Whatever our nationality, place of residence, gender, national or ethnic origin,

colour, religion, lnguage, or any other status, the international community on

December 10 1948 made a commitment to upholding dignity and justice for all of

us..41

The Universal Declaration of Human Rights was the first document in human

history which represented a common standard of achievement42for the international

community. It enumerated the basic civil, political, economic, social and cultural rights

that all human beings have a right to enjoy. Years after its adoption, the Universal

40Kamrul Hossain, Legality of the Security Council Action: Does the International Court of Justice

Move to Take Up the Challenge of Judicial Review? at

http://www.usak.org.tr/dosyalar/dergi/SX55yIGN3p9Urd6lBNqcC9nFBjNVyC.pdf(last viewed Feb. 9 2014).41 United Nations, History of the Universal Declaration of Human Rights at

http://www.un.org/en/documents/udhr/history.shtml(last visited Feb. 9 2014).42Preamble of the Universal Declaration of Human Rights


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Declaration of Human Rights is now widely accepted as the fundamental norms of

human rights that the international community its peoples and nations should

respect and protect at all times.

Although a Member States domestic law, particularly its constitution and bill of

rights, cannot prevent the application of enforcement measures by the UN SecurityCouncil under Chapter VII of the UN Charter, the same does not necessarily apply to the

Universal Declaration of Human Rights. The Universal Declaration of Human Rights is

not legally binding: it not being a treaty in itself. However, the Universal Declaration of

Human Rights was adopted for the primary purpose of defining the meaning of the

words "fundamental freedoms" and "human rights" as used in the UN Charter. 43It is

considered by many international lawyers as part of customary international law.44And

as was discussed earlier, the UN Charters purposes and principles embrace

international law as a whole, including the existing customary norms in general

international law.45

Article 12 of the Universal Declaration of Human Rights expresses the human

right to privacy. To wit:

No one shall be subjected to arbitrary interference with his privacy,

family, home or correspondence, nor to attacks upon his honour and

reputation. Everyone has the right to the protection of the law against such

interference or attacks. (emphasis mine)

The UN Security Council, therefore, even in the exercise of its awesome Chapter

VII powers, has to refrain from any arbitrary interference in the right to privacy ofindividuals because the UN Security Council has to act in compliance with the purposes

and principles of the UN Charter, which embraces international law as a whole, which

in turn encompasses the Universal Declaration of Human Rights. It is true that the UN

Security Council is authorized to temporarilyderogate from the rules of both treaty and

customary international law so long as it is acting under Chapter VII to maintain and

restore international peace. 46 [T]his authority is inherent in the very nature of

enforcement action and implicit in Chapter VII itself. Under no circumstances, however,

may the Council act in a way which would defeat the other purposes and principles of

the UN, or override any other rules of jus cogens.47Such temporary derogation must

43Supra.44Id.45Id.46Supra.47Aristotle Constantinides, An Overview of Legal Restraints on Security Council Chapter VII Action

with a Focus on Post-Conflict Iraq at http://www.esil-sedi.eu/sites/default/files/Constantinides_0.PDF (last

visited Feb. 9, 2014).


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therefore be exercised by the UN Security Council only as a last resort when all other

options in accordance with treaty and customary international law have been exhausted

or such are insufficient to address with adequate alacrity the emergencies and threats

against international peace that may confront the UN Security Council.

I submit that it is the duty of the International Court of Justice, upon request of aproper interested party48, to determine and shoot down any unwarranted derogation

from the purposes and principles of the UN Charter committed by the UN Security

Council as ultra vires. [I]t is a general and indisputable rule, that where there is a legal

right, there is also a legal remedy, by suit, or action at law, whenever the right is

invaded."49 It being the primary judicial organ of the United Nations, the International

Court of Justice is the appropriate body to provide such remedy.

48Only States are eligible to appear before the Court in contentious cases. At present, this basically

means the 192 United Nations Member States. The Court has no jurisdiction to deal with applications from

individuals, non-governmental organizations, corporations or any other private entity. It cannot provide them

with legal counselling or help them in their dealings with the authorities of any State whatever. However, a State

may take up the case of one of its nationals and invoke against another State the wrongs which its national claims

to have suffered at the hands of the latter; the dispute then becomes one between States. at http://www.icj-

cij.org/information/index.php?p1=7&p2=2(last visited Feb. 9, 2014).49Chief Justice John Marshall quoting William Blackstone in Marbury vs. Madison, 5 U.S. 137, (1803).


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CONCLUSION AND RECOMMENDATIONS

Ceteris paribus, the UN Security Council is nothing short of Big Brother the

moment it dons its Chapter VII powers upon a determination that there is a threat to

peace in the international community; and there is little to nothing that Facebook can

do to avert its piercing gaze in such a scenario. Said Chapter VII powers of the Security

Council will trump the rights of Facebook and its users arising from their respective

constitutions, bill of rights, and even from contracts such as the Facebook User

Agreement/Data Policy. It is my submission, however, that even though a Member

States domestic law cannot prevent the implementation by the UN Security Council of

enforcement measures under Chapter VII of the UN Charter, the same does not

necessarily exclude the application of the Universal Declaration of Human Rights albeit

indirectly.

It is generally accepted that the UN Security Council cannot act in such a manner

that the will defeat the purposes and principles of the United Nations as embodied in

the UN Charter. The UN Charters purposes and principles embrace international law as

a whole, including the existing customary norms in general international law. Despite

not being a treaty, the Universal Declaration of Human Rights is and can be considered

as part of customary international law. Therefore, the Universal Declaration of Human

Rights is considered as part of the purposes and principles of the UN Charter from

which the UN Security Council cannot derogate. Article 12 of the Universal Declaration

of Human Rights delineates the human right of persons to be protected against arbitrary

interference in their privacy. Therefore, the UN Security Council cannot arbitrarily order

the violation of the Facebook users right to privacy; and even if indeed the UN Security

Council determines that it has no other choice but to derogate from the rules of both

treaty and customary law in order to maintain and restore international peace through

its Chapter VII powers, such derogation can only be temporary. Such temporary

derogation must be exercised by the UN Security Council only as a last resort when all

other options in accordance with treaty and customary international law have been

exhausted or such are insufficient to address with adequate alacrity the emergencies and

threats against international peace that may confront the UN Security Council.

Based on the foregoing, the only remedy left for Facebook to pursue, in behalf of

its users, if it believes that the UN Security Council acted in bad faith or ultra vires,

would be to ask the United States its place and state of incorporation to take up its

case and invoke against the UN Security Council the wrongs which Facebook claims to

have suffered in the hands of the latter and at the same time pray for the mercy of the

International Court of Justice so that it would exercise its implied, though limited,


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powers of judicial review over Chapter VII UN Security Council decisions as implied by

cases such as the Lockerbie Incident Cases, and the Namibia Case.

I reiterate that while it is true that the International Court of Justice was not

expressly granted by the UN Charter the competence of judicial review or appeal with

respect to the decisions and resolutions of the UN Security Council, neither did the UNCharter explicitly deny said power to the International Court of Justice. The lack of an

express power of review in the Charter is not determinative. What is more important is

the lack of an express prohibition against engaging in judicial review. Since the Charter

does not specifically deny judicial review by the Court, a judicial review mechanism

may be developed through practice50It being the primary judicial organ of the United

Nations, the International Court of Justice should step up, albeit cautiously and with

sufficient self-restraint as the circumstances may require, to protect the rights of the

members of the international community.

As for the UN Security Council, it should always remember that targetedsanctions utility is directly correlated with their perceived effectiveness and legitimacy;

and legitimacy heavily depends on procedural fairnessand the availability of a remedy

to persons wrongly harmed. I forward then the recommendation that it adopts as its

own procedure or incorporate into its existing one the concept of probable cause as

well as the other requisites for the issuance of a valid search warrant when it decides

cases as that of Facebook where the right to privacy of individuals is at risk of being

encroached upon by the exercise of its Chapter VII powers. Furthermore, I suggest that

the UN Security Council adopt fair, clear, and transparent procedures associated with

such determination of probable cause and other requisites for the issuance of a valid

search warrant as may be adopted by it. If by chance the UN Security Council finds theadoption of the concept of probable cause and such other measures that ensure

procedural fairness51too painstaking an ordeal, an alternative option available to it

would be to should seek the aid of existing international judicial institutions, such as the

International Court of Justice, through requests for advisory opinions. Such course of

action will result in a fruitful interaction between the co-equal organs of the United

50Supra.51The minimum requirements for procedural fairness includes (i) the right to be informed of measures

taken by the Council and to know the case against him or her, including a statement of the case and informationas to how requests for review and exemptions may be made; (ii) the right to be heard (via submissions in writing)

within a reasonable time by the relevant decision-making body and with assistance or representation by counsel;

and (iii) the right to review by an effective, impartial and independent mechanism with the ability to provide a

remedy, such as the lifting of the measure or compensation.

For further discussion regarding the matter, see Watson Institute for International Studies,

Strengthening UN Targeted Sanctions Through Fair and Clear Procedures (Watson Institute for International

Studiesat http://watsoninstitute.org/pub/Strengthening_Targeted_Sanctions.pdf(last visited Feb. 9, 2014).


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Nations which will breathe to life to what Judge Lachs deemed to be the original intent

of the founders of the United Nations.

Documents

Balagtas. SLR Output. the Big Brother Dilemma