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HUMAN RIGHTS COUNCIL DISCUSSES THE RIGHT TO PRIVACY, AND COMMERCIAL SURROGACY IN THE CONTEXT OF THE SALE OF CHILDREN

6 March 2018

The Human Rights Council this morning held a clustered interactive dialogue with the Special Rapporteur on the right to privacy, Joe Cannataci, and the Special Rapporteur on the sale of children, child prostitution and child pornography, Maud de Boer-Buquicchio.

Mr. Cannataci presented his third annual report, which appraised the Council of how the mandate had addressed key areas of focus over the first three years, including on the innovative means developed to fulfil the mandate such as the creation of Thematic Action Stream Task Forces. Those aimed to identify contemporary obstacles to protecting the right to privacy such as, inter alia, cyber-based violence, gender and other biases in algorithms in the social sphere, and biometric and other technological tools used in security and surveillance. The report also underlined that, while international human rights law provided a basic set of universal, high-level principles and rights, it did not offer the level of detail essential to operationalize the right to privacy in the fast-changing digital world. That was why the mandate would continue to advance the work on developing a comprehensive international legal framework to regulate surveillance in cyberspace.

Ms. de Boer-Buquicchio presented her report on the vulnerabilities of children to exploitation in situations of conflict and humanitarian crisis, carried out with the Special Rapporteur on trafficking in persons, and stressed that existing prevention mechanisms and responses to the various forms of exploitation of children in the context of conflict and humanitarian crisis were largely ineffective. States should implement the recommendations contained in the report, including to ban child immigration detention, said the Special Rapporteur. The thematic study on surrogacy reminded that children were rights holders and any attempt to commodify them was in contravention of the norms. States must create safeguards to prevent the sale or trafficking in children in the context of surrogacy, because commercial surrogacy as currently practiced usually constituted the sale of children as defined under international human rights law. The Special Rapporteur also presented main conclusions and recommendations from her visit to the Dominican Republic.

Dominican Republic spoke as a concerned country.

During the discussion on the right to privacy, speakers stressed that States had to ensure that any interference with the right to privacy was in line with the principles of legality and proportionality. A binding legal instrument on the right to privacy and on surveillance seemed unnecessary, some delegates noted, and others commented on a lack of a common international understanding that would underline such a legal framework. They asked about the process and next steps towards the legal framework, what the States wishing to protect their citizens from the use of mega data in the hands of net companies could do, and how States and civil society could use new technologies to strengthen the right to privacy.

With regard to the sale of children, child prostitution and child pornography, speakers agreed that in light of the rise of surrogacy as a reproductive practice, regulating it appropriately was of critical importance. Surrogacy was a legally, ethically and socially complex issue, they said, and underlined that a better legal framework on surrogacy must be grounded on the imperative to prohibit and prevent the potential sale and trafficking of children, and must keep in mind the best interest of the child. A speaker stressed that in the maternal surrogacy, the birth of a baby and maternity were the object of a contract and therefore treated as commodities, and as such violated the dignity of the woman and the dignity of the child.

Speaking in the discussion were Brazil on behalf of a group of countries, European Union, Togo on behalf of the African Group, United Nations Children’s Fund, Israel, Russia, Pakistan, Egypt, Tunisia, United States, Togo, Australia, Cuba, France, China, Morocco, India, Greece, Venezuela, Iraq, Mexico, Iran, Thailand, Bolivia, Sudan, Ecuador, United Kingdom, Ireland, Japan, Sovereign Order of Malta, Slovakia, Saudi Arabia, Honduras, Paraguay and South Africa.

Also taking the floor were the following non-governmental organizations: Iraqi Development Organization, Centre for Reproductive Rights, Inc. (joint statement), European Centre for Law and Justice, Alliance Defending Freedom, Asian Legal Reform Centre, Privacy International, Human rights Advocates, Inc., Association for Progressive Communications, International Buddhist Relief Organization, Associazione Communità Papa Giovanni XXIII (joint statement), Khiam Rehabilitation Centre for Victims of Torture, Human Rights Now, World Association of Citizens, International Organization for the Elimination of All Forms of Racial Discrimination, and Jossur Forum des Femmes Marocaines.


The Council will next hold an interactive dialogue with the Special Representatives of the Secretary General on Violence against Children and on Children in Armed Conflict.


Documentation

The Council has before it the Report of the Special Rapporteur on the right to privacy (A/HRC/37/62)

The Council has before it the Report of the Special Rapporteur on the sale of children, child prostitution and child pornography (A/HRC/37/60).

The Council has before it an addendum to the Report of the Special Rapporteur on the sale of children, child prostitution and child pornography – mission to the Dominican Republic (A/HRC/37/60/Add.1).

Presentation of Reports by the Special Rapporteurs on the Right to Privacy and on the Sale of Children, Child Prostitution and Child Pornography

JOE CANNATACI, Special Rapporteur on the right to privacy, said that his annual report provided an overview of the way his mandate had addressed key areas of focus over the first three years of the mandate, and recalled that the intersection of privacy with State security interests and surveillance in cyberspace, especially the ones manifested in the Snowden revelations in 2013, had led to the creation of the mandate in 2015. As far as surveillance and privacy were concerned, the Special Rapporteur stressed that while international human rights law provided a basic set of universal, high-level principles and rights, it did not offer the level of detail essential to operationalize the right to privacy in the fast-changing digital world. What was missing – and what was essential for the adequate protection of the right to privacy - was the detailed multi-tiered and comprehensive legal framework for privacy.

Explaining the innovative means developed to fulfil the mandate, Mr. Cannataci highlighted the creation of the annual International Intelligence Oversight Forum and the Thematic Action Stream Task Forces on big data and open data, on health data, on privacy and personality, on security and surveillance, and on the use of personal data by corporations. Those Streams identified contemporary obstacles to protecting the right to privacy such as technologically based incursions in the health sphere, smart devices as tools of evidence in the justice sphere, cyber-based violence, gender and other biases in algorithms in the social sphere, and biometric and other technological tools used in security and surveillance.

The situation around the world was mixed, said Mr. Cannataci, highlighting extremely positive developments in some such as the decision by the Supreme Court of India in 2017 which had ruled that privacy was fundamental, inalienable and a constitutionally protected right; elsewhere, the protection of the right to privacy and effective remedies for breaches appeared contested, said the Special Rapporteur, citing an example of a woman whose genitalia had been photographed during a procedure by a healthcare worker on a personal phone and without her consent. Outlining the plans for the future, Mr. Cannataci stressed that he would continue to report on alleged violations of the right to privacy, seek remedies, and give voice to complainants who did not have access to domestic remedies; additionally, the Special Rapporteur would advance the work on developing a comprehensive international legal framework to regulate surveillance in cyberspace, which would be complementary to other existing pieces of cyberlaw such as the Convention on Cybercrime of the Council of Europe.

MAUD DE BOER-BUQUICCHIO, Special Rapporteur on the sale of children, child prostitution and child pornography, said as the world witnessed horrifying conflicts and humanitarian disasters, where children were often the first victims, and sometimes even primary targets; the international community had to provide protection for those who did not manage to escape and seek refuge elsewhere. It was unacceptable that children fleeing wars and disasters would face further hardship along their journey, by being subjected to various forms of exploitation. Her joint report on the vulnerabilities of children to exploitation in situations of conflict and humanitarian crisis, which she had carried out with the Special Rapporteur on trafficking in persons, had concluded that existing prevention mechanisms and responses to the various forms of exploitation of children in the context of conflict and humanitarian crisis were largely ineffective. She encouraged all States to implement the report recommendations, in particular the one that related to banning child immigration detention. As the negotiations of the Global Compact on Migration were reaching a critical stage, the world needed to ensure that the rights of the child were prominently reflected.

Referring to her country visits, Ms. de Boer-Buquicchio welcomed the invitation extended by the Government of Ireland to undertake an official visit in May 2018, and looked forward to a fruitful cooperation with the Government of Malaysia which she would visit in October, 2018. On the thematic study on surrogacy, she reminded that children were rights holders and any attempt to commodify them was in contravention of these norms. States, regardless of their perspectives on surrogacy, must create safeguards to prevent the sale of or traffic in children in the context of surrogacy. Her report noted that commercial surrogacy as currently practiced usually constituted the sale of children as defined under international human rights law. Indeed, if the surrogate mother or a third party received “remuneration or any other consideration” in exchange for transferring a child, the sale of a child occurred, as defined by the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. It was of upmost importance to resist against the pressures created by a large-scale practice of a market and contract based form of commercial surrogacy. Strict regulation based on human rights was consequently required in order to ensure that surrogacy did not amount to the sale of children. In this regard, the report proposed two safeguards.

Turning to her main conclusions and recommendations from her visit to the Dominican Republic, the Special Rapporteur noted that she had observed with grave concern that the sale and sexual exploitation of children in the country took many forms and was widespread. Nevertheless, in the past decade there had been a growing consciousness on this issue, and as a result, many activities, including the adoption of special laws as well as the incorporation of the absolute prohibition without exceptions, had been undertaken. She urged the Government to place the prevention of child sex tourism at the core of its strategy on tourism, and said the fight against sexual exploitation of children must become a political priority in the Dominican Republic.

Statement by a Concerned Country

Dominican Republic, speaking as a concerned country, stated that the visit by the Special Rapporteur was a testimony of the Government’s commitment to working with the Special Procedures. The Government fully recognized the rights of children and adolescents. There were no cases of statelessness in the Dominican Republic. A person was stateless if, and only if no State recognized that person as its own national. The children of undocumented Haitian migrants in the Dominican Republic were recognized as Haitian nationals. The delegation thus rejected subjective statements in the report. Dominican law did not discriminate against persons on any grounds. The situation of children of undocumented migrants was a reflection of social reality that was found in many countries. The Government aimed to regularize the status of foreigners. The Migration Law governed a code for the protection system for children. The Government also outlawed early and child marriage, made efforts to combat trafficking in human beings, and provided education to all children regardless of status. The delegation asked the Special Rapporteur to pay tribute to the country’s efforts to combat the sexual exploitation of children.

Interactive Dialogue

Brazil, speaking on behalf of a group of countries, noted that States had to ensure that any interference with the right to privacy was in line with the principles of legality and proportionality. A binding legal instrument on surveillance seemed unnecessary. European Union asked how States and civil society could use new technologies to strengthen the right to privacy. Turning to the exploitation of children, it stated that States needed to appropriately regulate the practice of surrogacy to prevent the sale of children. Togo, speaking on behalf of African Group, shared the view that a better legal framework on surrogacy was needed to prevent the covert sale of children. As for the right to privacy, the African Union had adopted a convention on cyber security and protection of private data.

United Nations Children’s Fund appreciated the thematic focus on surrogacy and the sale of children and agreed that it was necessary to ground responses in the imperative to prohibit, and create safeguards for the sale of children. It also commended the Special Rapporteur’s constant efforts to keep the sale and sexual exploitation of children high on the international agenda. Israel stated that the issue of international surrogacy was a matter of high importance and urgency, which required the creation of an appropriate international framework. Israel was a significant global partner in combatting trafficking and it fully supported international efforts in that direction. Russian Federation emphasized that the existence of internal legal provisions on surrogacy was the only way to prevent the potential sale and trafficking of children. As for the right to privacy, the Russian Federation had proposed a draft convention on international information security. Unfortunately, that initiative had been opposed by some countries that tried to impose their own rules of the game.
Pakistan said commercial international surrogacy practices were of serious concern and definitive legislative measures had to be undertaken to protect both women and children. Sale entailed hardships and loss of dignity for life. The issue of the right to privacy on the Internet was very important, and needed a balance between aspirations for the protection of the right to privacy and genuine security concerns. Egypt encouraged the Special Rapporteur on the right to privacy to pursue his mandate, noting that many of the present-day problems, including terrorism, were concerned by this. Children had the right to be educated within a family environment consisting of a mother and a father, in order to protect them from abuse. Tunisia said the right to privacy was one of the most important rights, which preserved the dignity and identity of human beings, while the spread of terrorism threatened the invasion of private data. On the sale of children, standards and guidelines were extremely important, especially due to the spread of surrogacy.

United States said for historical reasons, the United States privacy framework was different from that of other countries, and did not favour a legal instrument on surveillance and privacy. The United States remained committed to addressing the sale and sexual exploitation of children, however regarding surrogacy, its longstanding view was that surrogacy was legal, and regulated, in several of its jurisdictions, in full consistency with the obligations under the Protocol to this effect.
Togo appreciated the report on the sale of children, showing that the practice promoted the development of surrogacy of a commercial nature when laws were weak, which in turn, could harm and jeopardize the identity of children. Togo invited States to ratify the Optional Protocol in this regard, noting that it was important to put children at the heart of this discussion. Australia agreed with the Special Rapporteur on the sale of children that children could face specific vulnerabilities in the context of surrogacy, and said that the international community must work together to prevent the sale of children. On privacy, no individual should be subject to interference with their privacy, and Australia was committed to maintaining the comprehensive framework of the individual’s personal information.

Cuba asked for additional details concerning the process towards the crafting of a legal framework on the right to privacy and how the mandate would address the worrying and concerning issue of the violation of privacy by surveillance activities, and in particular their extraterritorial nature. Cuba stressed the importance of keeping the best interest of the child in mind in the context of surrogacy. France had put in place special independent bodies to regulate questions related to privacy and personal data and asked what the Special Rapporteur would recommend to States wishing to protect their citizens from the use of mega data in the hands of net companies. China stressed the lack of a common international understanding that would underline the legal framework on the right to privacy and urged the Special Rapporteur to carry out his work and constructive dialogues with all States in line with the United Nations Charter. Surrogacy was a legally, ethically and socially complex issue, which China carefully regulated to curb the sale and trafficking of children.

Morocco highlighted the universal importance of collecting, using and storing of data and the need that it ensured their protection and prevented their misuse, and to this end, it had set up the National Commission on the Monitoring of the Protection of Personal Data. India was in the process of adopting the Surrogacy (Regulation) Bill to regulate surrogacy services, prohibit the exploitation of surrogacy mothers, and protect the rights of children born through surrogacy; once adopted, the law would prohibit commercial surrogacy except for altruistic reasons. Considering that surrogacy as a reproductive practice was on the rise, Greece stressed the critical importance of regulating it appropriately; in Greece, altruistic surrogacy was allowed under certain conditions.

Venezuela reiterated concern about the abuse of surveillance and technology, and condemned the espionage carried out by some powers in the world, thus violating human rights. As for the sale of children in the context of surrogacy, such children were vulnerable to human rights violations and Venezuela was committed to fight such crimes. Iraq noted that in light of global terrorist challenges, the right to privacy had to be adapted. The international community had to stop the spread of websites through which terrorists were recruited. Iraqi children had been subjected to the worst forms of slavery and exploitation by ISIS. Mexico welcomed the focus on surrogacy and its impact on the sale of children, and noted that it worked to prevent commercial forms of surrogacy. States had to establish a clear and comprehensive legal framework to that end.

Replies by the Special Rapporteurs

JOSEPH CANNATACI, Special Rapporteur on the right to privacy, explained that the duty of the Special Rapporteur was to speak the inconvenient truth. His role was that of a critical friend. Responding to some comments about the limits of his mandate, Mr. Cannataci noted that his mandate was clear: it was to identify obstacles to the right to privacy, and some of those were gaps in the international legal framework. A universal right to privacy was in existence, but it did not constitute a comprehensive legal framework. His message to States was: stop playing games with each other, and stop playing games with the Special Rapporteur. The legal delineation of the right to privacy had to come out of national and international legislation. There were some things that national legislation could not do and that was determine jurisdiction. The matter of jurisdiction had to be sorted out at the international level, through negotiations among States. Mr. Cannataci pleaded with countries to stop repeating the mantra about the protection of rights both online and offline. States needed to overcome the issue of trust, for which there was no appetite at the time. Mr. Cannataci recommended to everyone to use as much encryption to protect private data. At the same time, States could desist from trying to dilute standards of encryption and from bullying companies to dilute encryption. Mr. Cannataci reminded that only one third of United Nations Member States did not have any kind of privacy laws. Among those that did, only 65 per cent had independent agencies to implement such laws. Several legal instruments were needed to regulate cyber space and resolve the problem of jurisdiction.

MAUD DE BOER-BUQUICCHIO, Special Rapporteur on the sale and sexual exploitation of children, in response to the questions on surrogacy, said leaving the matter unregulated clearly entailed serious risks. Whatever policy was dictated in a State, whether it was full prohibition, or prohibition of commercial surrogacy only, it had to be in line with human rights. The safeguards to be put in place in this regard included determining post-birth the best interest of the child, as well as considering appropriate suitability measures, and the protection of identity. The safeguards also included measures which retained the right of informed consent, including in regard to freedom of travel, as well as appropriate regulation of the financial and medical aspects of the surrogacy. Strict regulations of the intermediaries was indispensable. It was extremely important that States bore in mind that they would be confronted with surrogacies committed abroad, and therefore legislation on this was also necessary. Such surrogacies should neither be automatically rejected nor accepted. The Special Rapporteur said she had used her conclusions from her report as a basis for her interactions with other human rights mechanisms on surrogacy, and that she intended to have further collaboration on this issue. She called for other human rights mechanisms, including the Committee on the Elimination of Discrimination against Women, to study this issue, including from the perspective of women’s rights. She agreed that there was a lack of data on surrogacy in the African continent and there was a need to collect reliable data and conduct qualitative and quantitative data. In response to the United States comment on this issue, she challenged the assertion that the surrogacy arrangements which were legal in some States did not amount to the sale of children. It was simple – sale consisted of the following elements: payment, transfer, and payment for that transfer. It was therefore not right to exclude the surrogacy from the scope of Article 35 of the Optional Protocol on the sale of children. The Special Rapporteur intended to present to the General Assembly a report which would focus on the prevention of sale and trafficking, from a child rights perspective, and the aspect of the sustainable development goals. In response to the Australian delegation, she was of the opinion that all views on surrogacy had to be heard and she urged a societal debate on this question. Currently international principles and standards were being developed on surrogacies that were in accordance with the right of the child. In reference to adoption in the context of surrogacy, she pointed out that these were two very different issues. Their one element in common was that the underlying principle of both was that there was no right to a child under international law. What brought them together was the best interest of the child.

Interactive Dialogue

Iran raised concern about Government-led surveillance turning into practice and about foreign surveillance by certain countries with advanced technology; taking note of huge legal gaps in the protection of the right to privacy at the international level, Iran concurred that the Council should consider the progress towards international standards on Government-led surveillance. Thailand was a strong advocate of children’s rights and believed that the ratification and implementation of core treaties on child rights was vital, and that all forms of the sale of children including in the context of commercial surrogacy should be prohibited by law. Bolivia said that privacy was a fundamental human right recognized by the country’s Constitution; the digital cyber-surveillance could not remain unregulated and those possessing the technology could not continue to violate the sovereignty and dignity of other States.

Sudan had adopted a law in 2014 to combat trafficking in human beings and had deployed a rapid task force on the border to combat this phenomenon. Ecuador agreed that, due to the lack of relevant regulation and independent mechanisms for follow-up, international standards on surveillance and privacy should be crafted, and asked about best practices identified in the collection, processing and sale of information by multinationals. United Kingdom said that States could and should deliver both privacy and security to their citizens and asked what were the biggest risks to privacy in the future and how States could work to counter them.

Ireland said it was determined to put in place all the necessary legislative and service measures to tackle the specific issues of sexual exploitation and the sale of children. In October 2017, it had approved the drafting of legislation on assisted human reproduction, which would regulate a range of practices, including surrogacy. Japan stated that it remained committed to playing an active role in protecting and promoting human rights, including the right to privacy, in the international community. It regretted that it had not been given any opportunity to respond to the letter of allegation mentioned by the Special Rapporteur in his report. Sovereign Order of Malta noted that mothers should keep their rights as mothers, and children should be able to keep their identity, and in the case of adopted or surrogate-born children, have access to birth records or origins information. The sale of children could be a new form of slavery and should be prohibited.

Slovakia reminded that surrogacy as a reproductive practice was on the rise and it could lead under some circumstances to the sale of children. States should create safeguards to prevent the sale of children in the context of commercial surrogacy. Saudi Arabia highlighted that it was attached to all human rights issues, including the rights of the child, and it had developed legislation and policies devoted to the best interest of the child. Honduras asked the Special Rapporteur about some good practices on guaranteeing the right to privacy while protecting national security. On surrogacy and the sale of children, Honduras enshrined the protection of children and the family, and it had criminal provisions in that area.

Paraguay agreed that the introduction of technology incurred risks on the right to and protection of privacy and worked with the private security sector to draft a guidelines document to this effect. Paraguay worked on raising awareness, including through campaigns, on the scourge of the sale of children. South Africa agreed with the conclusions of the Special Rapporteur with regard to surrogacy, and encouraged international cooperation on this issue. It noted that a child’s right to know had to take into consideration broader social issues, such as the ability of the child to come to terms with finding out his/her biological origins. Iraqi Development Organization agreed that cyber-surveillance posed a serious threat to the right to privacy, particularly in the name of “state security.” For example, the Bahraini Government used the malicious FinFisher software to monitor emails, texts, and WhatsApp messages of human rights defenders, while the United Arab Emirates used a law on combatting cybercrimes to spy on activists.

Center for Reproductive Rights (in a joint statement with Child Rights Connect, International Federation for Human Rights Leagues), said women and girls must have the right to make their own decisions with regard to their lives and bodies, with free and informed consent in all aspects. Echoing the concerns on the power dynamics and exploitative practices in the context of surrogacy, it welcomed the call by the Special Rapporteur to collaborate with other human rights mechanisms to contribute to further research on this issue. European Centre for Law and Justice said the world was plagued with serious forms of age-related discrimination, which brought children to a level of objects – subjected to the power of someone else. Children could be killed, bought, sold, and were also deprived of their identity and their direct line of descent, as well as of their mothers and fathers. In the face of these challenges, the world had a very important mission. Alliance Defending Freedom called on all States to reject all forms of surrogacy, stating that this practice raised serious concerns on their impact on the dignity of the child, refusing the child to know his/her identity. It undermined any natural relationship between mother and child and fell under the definition of article 2 to the Optional Protocol on the sale of children. Asian Legal Resource Centre said Asian dysfunctional criminal justice institutions in most of the Asian States failed to provide a first line of defense against uncontrolled interference of the State into the private life of citizens. The heinous crime of the sale of children still happened in Bangladesh, India, Nepal and Pakistan.

Privacy International stated that a growing number of governments were embracing hacking to facilitate their surveillance activities. The Rapporteur was encouraged to develop a human rights analysis of government hacking, seeking information from States, and should develop recommendations based on international human rights law. Human Rights Advocates was concerned that illegal adoptions continued to occur worldwide. The method of document falsification, which was inherent to the practice of illegal adoption, possessed potentially dire concerns for children because the lack of valid identification rendered them stateless. L'Association for Progressive Communications commended the reports’ gendered approach to privacy and surveillance and the recognition that violations to privacy formed part of online gender-based violence. Online attacks, such as doxing, and the use of personal data constituted violations of the right to privacy.

International Buddhist Relief Organization expressed thanks to the Special Rapporteur on the sale of children for submitting a joint report with Special Rapporteur on trafficking in persons, especially women and children. The Indian Government was not investing sufficient efforts to assist victims of child prostitution. Associazione Comunità Papa Giovanni XXIII1, said that in the maternal surrogacy, the birth of a baby and maternity were the object of a contract, introducing confusion between persons and commodities. States were asked to take a clear and strong position against maternal surrogacy, which violated the dignity of the woman but also the dignity of the child. Khiam Rehabilitation Centre for Victims of Torture said that children in Darfur were victims of crimes against humanity, war crimes and genocide and were displaced in vast numbers, making them vulnerable to sale and sexual exploitation. In Yemen and in Lebanon children were sold, forced to beg and were exposed to different forms of exploitation.

Human Rights Now had conducted an investigation which had found that child pornography was widely available in Japan and yet the authorities did very little to address the deeply embedded problem of child pornography. Association of World Citizens stressed that children could not defend themselves against trafficking in persons and that was why it was essential for States to criminalize trafficking and impose sanctions on entities and individuals that engaged in this crime.

International Organization for the Elimination of all Forms of Racial Discrimination EAFORD stressed that commercial surrogacy put children and mothers living in poverty at risk of exploitation, especially as most of the prospective parents came from developed countries and surrogate mothers from developing countries. Jossur Moroccan Women Forum said that the Polisario engaged in breaking family unity and targeted children in the Tindouf camps by displacing them to other countries, including Spain, under a guise of “holiday” and “humanitarian” motives, but in fact this was unlawful adoption.

Concluding Remarks

JOE CANNATACI, Special Rapporteur on the right to privacy, in concluding remarks, said in response to the question by the United Kingdom on the biggest risks to the right to privacy that there were two risks. One was the unwillingness of countries, including some permanent members of the United Nations Security Council, to discuss privacy at the intersection of security. The second risk was that of people, further sleepwalking in a surveillance society, due not only to the surveillance carried out by States but also because of the lack of knowledge about measures they could take, including encryption, to try to protect their privacy. Regarding the questions posed by Cuba, he informed that he had held a multi-stakeholder process, together with the European Union Mapping Project on Internet Privacy and Governance. Several sessions had been held in the United States and Europe, with the participation of civil society organizations, secret state services, Interpol, all the relevant internet companies, including Microsoft, Apple, Facebook, Yahoo, Google, and so forth. The greatest problem was not recognition of the universal right to privacy but on how to operationalize that right at the international level. One of the ways to deal with this was also through drafting legal instruments. Companies had asked for the development of both a national and an international law on this issue.

Regarding jurisdiction, he pointed out to those countries that stated there was no necessity, to look at the facts. The facts showed that on 6 February 2018 the United States had announced a proposal called the “Cloud Act” which was principally a matter to settle issues going across the border where issues of jurisdiction were not clear. This approach had not escaped the attention of the European Union, which, in a discussion note from the President of the 6339 of 2018, mentioned this Cloud Act and other initiatives including the Additional Protocol to the Convention on Cybercrime, precisely to address the issue of jurisdiction. While on the one hand stating that there was no necessity for a legal instrument, these same countries were seeking solutions for jurisdiction albeit bilateral ones which would not be as effective. The other issues which were a source of concern were the repetition of the mantra about what rights applied on line, which could also be seen as an attempt to give legitimacy to doing nothing about problems that were staring us in the face. He sympathized with countries that feared that any discussion should lead to the hijacking of the issue by those countries that only paid lip service to human rights, but who then used a new legal instrument to actually suppress and infringe upon rights. On the issue of government surveillance and government hacking, he shared the concern, however, he thought there were circumstances where it was both legitimate and proportionate. There were many sections in the draft legal instrument which were envisaged to tackle hacking by governments through improved oversight of surveillance. If legitimate and proportionate, then what was needed was a very strong set of oversight mechanisms inside and outside the government through strong, well-resourced independent oversight authorities on the government which proposed to carry out intrusion of privacy measures. These also had to ensure that when going across borders, a government respected all international human rights and legal instruments, including the freedom of expression.

MAUD DE BOER-BUQUICCHIO, Special Rapporteur on the sale of children, child prostitution and child pornography welcomed the question of Mexico on retroactive changes to surrogacy law. The concept of the best interest of the child needed to be central to surrogacy as well, not leading to any situation that would threaten the child’s best interest. Any investigation of wrongdoings of parents had to focus on the best interest of the child as well. Instructions for States on how to ensure the implementation of the best interest of the child were contained in the comment number 14 of the Committee of the Rights of the Child, providing advice to States on how to implement this provision of the Convention on the Right of the Child. International and national surrogacy laws should be based in human rights and prohibit the sale of children. Assisted reproductive technology such as surrogacy raised ethical considerations which were important to discuss. It was important that the law keeps up with the technology, because if States failed to regulate this area, there was a possibility for domestic and international markets of children. Such markets already existed and should be dismantled right away. It was important that other human rights instruments take up the matter of surrogacy. Under no circumstance could children be treated as a commodity or discriminated against based on the way they had been conceived. All States that had ratified the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography should endorse this view.
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1Joint statement: Associazione Comunita Papa Giovanni XXIII; Edmund Rice International Limited; Company of the Daughters of Charity of St. Vincent de Paul; International Catholic Child Bureau; International Volunteerism Organization for Women, Education and Development VIDES; Istituto Internazionale Maria Ausiliatrice delle Salesiane di Don Bosco; Demonstration For All; Make Mothers Matter – MMM; International Movement of Apostolate in the Independent Social Milieus; World Union of Catholic Women's Organizations.


For use of the information media; not an official record

HRC18/025E