تلاقی حقوق بشر، فناوری و امنیت ملی در پرتو رویه دیوان اروپایی حقوق بشر (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
دیوان استراسبورگ در طول فعالیت خود تلاش کرده در آرای صادره ضمن پاسداری از حقوق بشر، مراقبت کند تا در مواقع حساس، که امنیت ملی کشورهای عضو کنوانسیون با خطر مواجه می شود، نقشی بینابین ایفا کند تا از این رهگذر هم جانب «حقوق بشر» را بگیرد هم به «امنیت ملی» دولت ها بی توجه نباشد. بااین حال، آنچه مراقبت از حقوق بشر را با چالش مواجه ساخته، «فناوری های ارتباطی» پیچیده و پیشرفته ای است که از یک طرف به جنایتکاران (داخلی و بین المللی) امکان ایجاد ارتباط، هماهنگی، اجتناب از شناسایی و... می دهد و همچنین، چنین امکانی موجبی است برای کشورها تا به عنوان تهدید امنیت، «دامنهٔ صلاحدیدی» خود را گسترش و حقوق بشر را به حاشیه ببرند. پرسش این است که دیوان استراسبورگ در موضوع چالش برانگیز تلاقی حقوق بشر، فناوری و امنیت ملی چگونه می تواند به پاسداری از حقوق بشر بپردازد؟ در پاسخ می توان گفت که از یک طرف، دیوان از رهگذر پرونده های مطروحه مراقبت نموده تا دولت ها از فناوری های پیشرفته برای کنترل ارتباطات و اطلاعات افراد و تجاوز به حریم خصوصی آن ها سوءاستفاده نکنند. از طرف دیگر، با توجه به امکان سوءاستفادهٔ گروه های قانون شکن (به ویژه حمله کنندگان سایبری و گروهک های تروریستی) از ظرفیت فناوری، دیوان به کمک دولت ها شتافته و حاشیهٔ صلاحدید نظارتی کافی به آن ها جهت حفاظت از امنیت ملی شان اعطا کرده است.The Confluence of Human Rights, Technology and National Security in the Light of the Case-Law of the European Court of Human Rights
During its activity, the Strasbourg court has tried to take care in the decisions issued while protecting human rights, in order to play an intermediary role in critical situations when the national security of the member countries of the convention is in danger, so as to be on the side of " human rights " and do not ignore the "national security" of governments. However, what makes the care of human rights a challenge is the complex and advanced "communication technologies" that, on the one hand, allow dangerous criminals (domestic and international) to communicate, coordinate, avoid detection, etc.; and on the other hand, such a possibility deems as a threat to countries security and causes to expand their "discretion" and result in marginalize human rights. The question is, how has the Strasbourg court been able to protect human rights while paying attention to the national security concerns of countries in the challenging issue of the intersection of human rights, technology and security In response, It can be said that The court through the submitted cases, on the one hand, has taken care of, so that governments do not abuse advanced technologies to control people's communications and information or violate their privacy, and on the other hand, according to the possibility Abusing the capacity of technology by law-breaking groups, especially cyber attackers and terrorists, the Court has rushed to the aid of the governments and given them Certain Margin of appreciation to interception to protect their national security. Keywords: National Security, Margin of Appreciation, Human Rights, European Court of Human Rights, Communication Technologies 1. Introduction It is obvious that the protection of human rights is the most important application of the European Court of Human Rights, known as the Strasbourg Court, and the Court has tried to protect European human rights with its brilliant performance in numerous cases. Despite this, one of the issues that leads to the functional limitation of the court is the issue of the security of the member states, which in articles (6, 8 to 11) allow them to take necessary measures when "national security" is endangered. and has given them a degree of "discretion" or "margin of Appreciation" to detect the threat and necessary measures to deal with it. One of the important issues facing the Court is the efforts of member states to deal with threats related to their security interests and possible violations of human rights, and the Court has tried to protect human rights against the excesses of countries in various cases. However, in recent years, due to the growth and development of communication technologies, the security threats facing countries have expanded, and the same issue has had an impact on the Court's approach. Maybe in the past it was obvious that the threat to a country's security is understood in the context of foreign military threats; But the passage of time and the developments that have taken place have changed this mentality and the scope of the threat to the security of a country has become much wider; In such a way that even the United Nations Security Council approved such a development. In Resolution 1308, the Security Council considers the AIDS virus as a possible threat to stability and security if the necessary care is not taken; or in Resolution 2177 considers the unprecedented spread of the Ebola virus in Africa as a threat to international peace and security; And in Resolution 2565, it declares that the unprecedented spread of the COVID-19 virus may endanger the maintenance of international peace and security. However, according to some, such resolutions are more based on desirable rights than existing rights and their recommendatory nature prevails over their mandatory nature. However, with the emergence of new technologies, the scope of fundamental security interests should be expanded to include cyber, communication and information threats, and as the International Court of Justice has also acknowledged, the concept of fundamental security interests is definitely not limited to armed attack but it is beyond that. Communication technologies is a word that should not be limited to the Internet and its main role should be to facilitate the reception, transmission, storage, processing and collection of information, which means radio, television, satellite transmitters, e-mail, network Social... can also be considered as an example that such characteristics include positive and negative effects. Among the positive effects of technology, we can mention the provision of suitable solutions for various issues, informing people of their rights, guaranteeing human rights claims, informing about human rights violations, etc., and on the other hand, the negative effects of communication technologies; can count the direction of people's ideas and information or the misuse of its capacities by dangerous groups for subversive actions. Therefore, countries have tried to expand their surveillance-interception field so that the misuse of technological capacities does not harm their national security interests. In this article, we are looking for an answer to the question of how the Court of Strasbourg can protect human rights in the challenging issue of the intersection of human rights, technology and national security. And what effect has technology had on the court's approach? For this purpose, first (in the second paragraph) we will have a reflection on the narrow and strict approach of the Court; In the following (third paragraph) we will examine the modification of the court's procedure under the influence of the development of communication technologies and after that (fourth paragraph) we will evaluate and analyze the court's procedure. In domestic law, despite the fact that there are a number of articles and books on human rights, technology and national security separately, there is no work that specifically looks at all three categories together, and it has been the same in foreign research. with the difference that in some articles, human rights and national security have been considered in the procedure of the European Court of Human Rights. 2. Methodology In this research, we tried to collect and gather information from the primary sources (including laws, regulations, directives, bylaws, judicial decisions, etc.) and secondary sources (such as books and articles, theses, research reports, etc.) in scientific research data centers, official and reputable websites, libraries, and similar resources. At first, we will have a reflection on the narrow and strict approach of the Court; In the following, we will examine the modification of the court's procedure under the influence of the development of communication technologies, and after that (Finally) we will evaluate and analyze the court's procedure. 3. Results and Discussion Communication technology is not limited to information transfer and one of its important applications is to introduce and guide different topics. If we measure such features in the age of technology, along with issues such as the spread of dangerous people and organizations domestically and internationally, we conclude that strengthening the precautionary approach to technology is a necessity for living in today's world. In the cases where technology, national security and human rights conflict, the court has not forgotten its position to create a balance. In other words, the court takes care of the passing of the cases so that governments do not abuse advanced technologies to control people's communications and information or violate their privacy or their freedom and other human rights, and on the other hand, in the decisions has shown that the court is not indifferent to the sovereignty of countries, and in cases where law-breaking groups, especially the most dangerous ones, i.e. cyber attackers and terrorist groups, may threaten the security of countries by using technology, it rushes to help the governments. And it did not let them use the capacity of technology to achieve sinister goals and hide themselves under the protection of human rights. In addition, in all cases, the court has maintained its legal-supervisory role regarding the whole case and has carefully evaluated the challenging actions of the government and has repeatedly stated that it is necessary to provide sufficient guarantees by the governments in order for the court to It should be noted that they have used all their efforts to prevent arbitrary behavior as well as abuse of their supervisory capacity through technology. Also, their actions to reach a legitimate goal and within the framework of the convention were necessary for a democratic society. Therefore, by considering the public interests and interests of the society on the one hand and individual interests and freedoms on the other hand, the court tries to create a balance between the two and issue a decision depending on the case and according to the facts and circumstances of each case; which has provided the protection of human rights and assured the governments of their national security. 4. Conclusions and Future Research In general, it seems that the Court, unlike some international courts, has tried to adopt a balanced approach and does not have a strict and one-sided view of the protection of human rights and does not forget its duty to fully comply with the provisions of the Convention, which in some articles, care has considered national security as one of the important duties of the member states.
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