THE BIG BROTHER DILEMMA: CAN FACEBOOK AVERT THE

PIERCING GAZE OF THE UN SECURITY COUNCIL?

CARL EDISON M. BALAGTAS

A REQUIREMENT FOR LAW 119

(SUPERVISED LEGAL RESEARCH & WRITING)
DEAN RAUL PANGALANGAN
UP COLLEGE OF LAW
DILIMAN, QUEZON CITY

FEBRUARY 26, 2014

THE BIG BROTHER DILEMMA: CAN FACEBOOK AVERT THE

PIERCING GAZE OF THE UN SECURITY COUNCIL?
1

Carl Edison M. Balagtas

ABSTRACT
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. Said power and authority will then be pit 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). This
paper also concerns itself with possible restrictions on the seemingly unbridled Chapter VII powers of the
UN 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 the
Chapter VII powers of the UN Security Council. Said purposes and principles of the UN Charter embrace
international law as a whole, including the existing customary norms in general international law which
the Universal Declaration of Human Rights forms part of. By this reasoning, the Universal Declaration of
Human Rights is part of the purposes and principles of the UN Charter from which the UN Security
Council cannot derogate. Thus, Article 12 of the Universal Declaration of Human Rights which contains
the human right of persons to be protected against arbitrary interference in their privacy can be invoked to
limit the UN Security Councils Chapter VII powers. As to who can enforce said restrictions, this paper
submits that it is the International Court of Justice with its implied, but limited, power of judicial review as
could be gleaned from the rulings in the Lockerbie and Namibia decisions.

Big Brother is a fictional character breathed to life by George Orwell in his novel Nineteen EightyFour. 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.

TABLE OF CONTENTS
I.
II.

INTRODUCTION: THE BIG BROTHER DILEMMA

THE UN SECURITY COUNCIL AND THE MONITORING
GROUP ON SOMALIA AND ERITREA
United Nations Security Council
Monitoring Group on Somalia and Eritrea
III.
THE SOCIAL NETWORK: FACEBOOK
Facebook Inc.
Facebook User Statistics
Facebook Features
Types of Information Obtained by Facebook
Facebook Info Utilization
IV.
CONTRACTUAL RIGHT TO PRIVACY VS. UN SECURITY COUNCIL
V.
UN SECURITY COUNCILS CHAPTER VII POWERS
VI.
ROLE OF THE INTERNATIONAL COURT OF JUSTICE (ICJ)
Advisory Jurisdiction
Limited Judicial Review
VII. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
VIII. CONCLUSION AND RECOMMENDATIONS

1
3
3
5
9
9
9
10
12
14
15
18
20
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20
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THE BIG BROTHER DILEMMA: CAN FACEBOOK AVERT THE

PIERCING GAZE OF THE UN SECURITY COUNCIL?
Carl Edison M. Balagtas

The privacy and dignity of our citizens [are] being

whittled away by sometimes imperceptible steps.
Taken individually, each step may be of little
consequence. But when viewed as a whole, there
begins to emerge a society quite unlike any we have
seen -- a society in which government may intrude
into 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 embargo2 against 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

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 develop Somali security sector
institutions is allowed subject to some requirements such as notice to the sanctions committee on
Somalia. Come November 2008, Security Council Resolution 1844 was issued. Said resolution
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.
3
Yahoo News, UN experts slam Facebook for Somalia sanctions silence at
http://ph.news.yahoo.com/un-experts-slam-facebook-somalia-sanctions-silence-191438665.html (last
visited Jan. 20, 2014)
4
Id.
1

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 or
comment 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 private
information 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.

THE UN SECURITY COUNCIL AND THE MONITORING

GROUP 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.

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 was
also 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.
xxx
The Security Council has only been reformed once, by enlargement from
twelve members to its current fifteen members in 1965. Enlargement has been
widely 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.
6
The 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 Social
Council (ECOSOC) (for promoting international economic and social co-operation and development);
the Secretariat (for providing studies, information, and facilities needed by the UN); the International
Court of Justice (the primary judicial organ); and the United Nations Trusteeship Council(inactive). at
http://www.unaslovenia.org/en/un/organs (last visited Feb. 2, 2014)

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 an
indispensable 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
http://www.un.org/sc/committees/
8
Supra.
9
Supra.

Council

Sanctions

Committees:

An

Overview

at

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 the
arms embargo with a view toward strengthening it. The Panel of Experts was
succeeded by the Monitoring 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 designated
pursuant 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, all
activities, including in the financial, maritime and other sectors, which
generate revenues used to commit violations of the Somalia and Eritrea arms
embargoes;

10

Supra.
6

(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 the
previous 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 of
resolution 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

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 develop
Somali 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 be
subject 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, to
surrender such information was warranted.
11

UN
Security
Council
Resolution
2060
http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/Somalia%20S%20RES%202060.pdf (last viewed Feb. 4, 2014)
12
Paragraph 13(e), Resolution 2060 (2012).

(2012)

at

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 derived
from 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 8th 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
13

Facebook, Key Facts at http://newsroom.fb.com/Key-Facts (last viewed Feb. 9, 2014)

Supra.
15
Maximilian Nierhoff, Facebook Country Stats February 2013 Top 10 Countries Lose Users Due
To The Ongoing Account Cleanup at http://www.quintly.com/blog/2013/02/facebook-country-statsfebruary-2013-top-10-countries-lose-users/ (last viewed Feb. 9, 2014)
14

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

FACEBOOK
FEATURES
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

16
Gethooked, Facebook Reaches 30 Million Users in the Philippines at
http://www.gethooked360.com/facebook-reaches-30-million-users-in-the-philippines/ (last viewed
Feb.9, 2014)
17
Internet World Stats, Asia at http://www.internetworldstats.com/asia.htm#ph (last viewed
Feb. 9, 2014)
18
Supra.

10

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 updates
about 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 received
from 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
11

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.

12

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;
13

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 INFO
UTILIZATION
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
https://www.facebook.com/about/privacy/your-info (last viewed Feb. 9 2014)
20
Supra.

is

Used

at

14

CONTRACTUAL RIGHT TO PRIVACY

VS.
UN SECURITY COUNCIL
The Facebook User Agreement is the written contract between Facebook and the
Facebook 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
States where 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 about
you, 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
21

Supra.
15

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
https://www.facebook.com/about/privacy/other (last visited Feb. 9, 2014)
23
Simon Chesterman, The UN Security Council and the
http://ssrn.com/abstract=1279849 (last visited Feb. 9, 2014)

to

Know

at

Rule

of

at

Law

16

the United Nations. 24 The 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.

24

UN CHARTER art. 92.

17

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.25 This 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.

25
26

Supra.
Id.
18

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 warrant27 when 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 to
divulge 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, the
same 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.28 This
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 Lockerbie
Incident 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

27

For 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 take
cognizance 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.
29
Libya v. U.S., 1992, International Court of Justice.
19

ROLE OF THE INTERNATIONAL COURT OF JUSTICE (ICJ)

ADVISORY JURISDICTION
The UN Charter provides a unique and crucial role for the International Court of
Justice by granting it advisory jurisdiction in certain circumstances. Article 96 of the UN
Charter provides:
1. General Assembly or the Security Council may 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 and
international 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
20

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 that
the 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 the
peace.
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 lacked
prima facie jurisdiction to grant Libyas requested provisional measures because
30

Professor Rosenne as quoted in Scott S. Evans, The Lockerbie Incident Cases: Libyan-Sponsored
Terrorism,
Judicial
Review
and
the
Political
Question
Doctrine
at
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1434&context=mjil
(last
visited Feb. 9, 2014).
31
Libya v. U.S., 1992, International Court of Justice.
21

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 was prima facie regarded 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 this
mean 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
32

UN CHARTER art. 103

Scott S. Evans, The Lockerbie Incident Cases: Libyan-Sponsored Terrorism, Judicial Review and the
Political
Question
Doctrine
at
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1434&context=mjil
(last
visited Feb. 9, 2014).
34
Id.
35
Supra.Separate Opinion of Judge Shahabuddeen.
33

22

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.36 Such 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 legal
questions.37
A case in point would be the Namibia case where 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.38 But 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 the
International 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 UN
Charter.
36

Supra.
Supra.
38
Supra.
39
Id.
37

23

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.40 Since
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 fundamental
freedoms 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 achievement42 for 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
40

Kamrul 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).
42
Preamble of the Universal Declaration of Human Rights
24

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 Security
Council 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.43 It is
considered by many international lawyers as part of customary international law.44 And
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 of
individuals 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 temporarily derogate 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.47 Such temporary derogation must
43

Supra.
Id.
45
Id.
46
Supra.
47
Aristotle 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).
44

25

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 a
proper 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.

48
Only 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.icjcij.org/information/index.php?p1=7&p2=2 (last visited Feb. 9, 2014).
49
Chief Justice John Marshall quoting William Blackstone in Marbury vs. Madison, 5 U.S. 137, (1803).

26

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 UN
Charter 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 practice50 It 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 targeted
sanctions utility is directly correlated with their perceived effectiveness and legitimacy;
and legitimacy heavily depends on procedural fairness and 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 the
adoption of the concept of probable cause and such other measures that ensure
procedural fairness51 too 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

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Supra.
The 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 information
as 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
Studies at http://watsoninstitute.org/pub/Strengthening_Targeted_Sanctions.pdf (last visited Feb. 9, 2014).
51

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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.

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