'The Intelligence Community as a Normative Actor under International Law' by Sophie Duroy in Russell Buchan and Iñaki Navarette (eds) Research Handbook on Intelligence and International Law (Elgar, forthcoming 2025) comments
Although the exact parameters remain debated, it is now undisputed that international law applies to intelligence activities. A more difficult - and still unanswered - question is how international law and the intelligence community influence one another. In this chapter, I demonstrate that the relationship between international law and the intelligence community is bidirectional and mutually constitutive. International law first constitutes a strong permissive tool for the intelligence community. The intelligence community invokes international law to explain, justify, and legitimate its activities, while international law itself provides legitimation to the intelligence community for many of its activities. At the same time, international law also constrains the intelligence community through the risk of accountability, which matches the increase in exposures. In turn, the intelligence community shapes international law when it uses it for political legitimation. Whereas, in the past, the intelligence community remained silent on its practices, at best uttering 'neither confirm nor deny', the situation has changed. Forced exposure has triggered a matching need to legitimise intelligence activities through law. The intelligence community is now openly engaging with and interpreting international law, putting forward interpretations that will legitimise its preferred outcomes and empower it to pursue its choices of policies. In doing so, the intelligence community changes the meaning ascribed to international norms. In addition, when the intelligence community refuses to abide by the rules of the legalism game by not providing a legal justification for its activities, it undermines the status of international legal norms, which may be perceived as less binding by the rest of the international community. For these reasons, the intelligence community has truly become a normative actor under international law and should be considered an occasional norm-shaper, if not yet a norm-setter.
'Making Tangible the Long-Term Harm Linked to the Chilling Effects of AI-enabled Surveillance: Can Human Flourishing Inform Human Rights?' by Niclas Rautenberg & Daragh Murray in (2024) Human Rights Review comments
The digital era, and the development of AI-enhanced analytical tools in particular, has brought about a step change in State surveillance capabilities. Previously States could only monitor a relatively small number of individuals and gain relatively limited insights into their activities. Today, however, we are moving towards a pervasive surveillance society wherein States can monitor nearly everyone within their jurisdiction, develop detailed individual profiles, predict likely future behaviors, and make individually focused decisions. Digitalization and AI also mean that States can deploy this surveillance capability at virtually no cost (e.g., Lyon 2001, Buckley and Mozur, 2019; Shakir and Wang, 2021; Amnesty International, 2023). This is a new and unprecedented development. The precise impact of this surveillance capability is as yet unknown but it is likely to exert chilling effects, whereby individuals modify their behavior due to concern as to the consequences that may follow if that behavior is observed (Penney 2022; Murray et al. 2024; Stevens et al. 2023). Externally imposed changes to behavior will inevitably affect the process by which individuals develop and express their identity, potentially discouraging new or unconventional ideas, encouraging adherence to the status quo, and undermining the well-being and evolution of democratic society (Richards 2013; Cohen 2000).
Typically, we would turn to international human rights law to regulate State surveillance. As it stands, however, it is not clear that human rights law is suited to this task. Human rights law was developed for an analogue world, when States’ surveillance capability was limited to individuals or groups of individuals, not all of society. As such, while human rights law is relatively adept at protecting specific threats to individuals’ identity caused by chilling effects – if, for instance, their activities are recorded in public, peaceful assemblies are inappropriately interfered with, or a political opponent is subject to sanction as a warning – it is not set up to protect against the society-wide chilling effects linked to pervasive surveillance. The difficulty of course is that pervasive surveillance is one of, if not the, defining features of the AI age. This presents a significant challenge, particularly because underestimating harms associated with chilling effects risks inappropriately biasing human rights compliance tests in favor of surveillance, exacerbating the problem. Accordingly, if human rights law is to remain relevant it must acknowledge the transition from an analogue to a digital society and evolve. Doing so requires a better understanding of the social institutions that facilitate individuals’ ability to freely develop their identity, to become their ‘true selves’, and to emerge – if they so choose – as political actors capable of contributing to the evolution of democratic society. Or, put differently, it requires a better understanding of how harm to social institutions may be conceptualized so that this harm may be incorporated into human rights compliance tests.
The notion of a ‘true self’ is closely linked to the work of Friedrich Nietzsche who famously wrote that the ultimate goal in life is to become who one is (2001: §270). This somewhat paradoxical formula for developing one’s identity amounts to finding and living in one’s own ‘style’. By gaining an understanding of one’s strengths and weaknesses, an understanding of who one currently is and can potentially be in the future, one can construct an ideal version of oneself as a guiding idea. Thus striving, we are bound by our style, ‘but also perfected under [our] own law’, promising the attaining of ‘satisfaction with’ ourselves (Nietzsche 2001: §290). Irene McMullin (2018) argues that this dynamic process of self-becoming is an integral part of living a good life, i.e., of human flourishing. The link between human flourishing and the free development of an individual’s identity are clear. McMullin also notes that a life well-lived involves deliberating about and considering the norms regulating society (2018: 64). Importantly, these two dimensions are interwoven: developing one’s true self, and the social institutions enabling such development, mutually inform one another (ibid.). The notion of flourishing therefore reflects both dimensions negatively affected by surveillance-related chilling effects. A closer look at this concept may provide insight into how chilling effects interfere with flourishing (or identity development) at a societal level, thus providing a lens through which to conceptualize and assess the (long-term) harms associated with AI-enhanced State surveillance.
This paper begins by discussing the chilling effects surveillance technologies exert on individuals and their identity development, as well as relevant human rights protections, namely: the right to private life, freedom of expression, and freedom of assembly (Section 2). Section 3 evaluates contemporary objective and subjective approaches to flourishing in light of this paper’s purposes. Broadly speaking, objective theories hold that flourishing is determined by the fulfilment, or not, of certain objective criteria, irrespective of an individual’s own perception, while subjective theories put a high emphasis on the autonomy of the individual in determining what constitutes flourishing. This examination is not intended to be comprehensive. Instead, for the purposes of this paper, paradigmatic examples are introduced: Aristotelian naturalism provides an example of an objective approach (3.1.); L.W. Sumner’s life-satisfaction approach provides an example of a subjective theory (3.2.). We engage with both approaches to raise some important critiques, specifically regarding their suitability as conceptual tools for human rights analyses. Relevant is the role of personal autonomy and choice, as well as the establishment of a clear story explaining how flourishing can be facilitated. Accordingly, Section 4 introduces Nussbaum’s iteration of the capabilities approach. While her account is still objectivist, it safeguards an individual’s autonomy to a degree that Aristotelian naturalism does not. It therefore incorporates an important subjective dimension into the concept of flourishing, while not falling prey to the critiques raised with respect to the life-satisfaction approach. Section 5 discusses how the capabilities approach can offer a useful framework through which to conceptualize the harm linked to surveillance chilling effects. In essence, in order to preserve individual identity development and democratic processes, individuals must be free to flourish. AI should not, therefore, inappropriately interfere with the development and exercise of the capabilities, and so the capabilities can act as a frame of reference against which to evaluate proposed AI deployments. However, in order to indicate when and to what extent harm occurs – requirements central to any human rights law analysis – the capabilities must be operationalized. This is a far from trivial task, and this paper concludes by raising two key challenges that are likely to arise.
