Domestic Law

"Following Dennis Tito's flight to space aboard the Russian Soyuz capsule in 2001, suborbital has become a new form of commercial activity. Fueled by an eager public and decreasing prices, the industry is rapidly expanding. Because the current space law regime was originally designed for governmental exploration, it is inadequate to handle the range of legal challenges emerging from this private commercial activity. This article therefore suggests that the current legal regime is incapable of sustaining the space tourism industry and that there is an urgent need for a new international convention. "

Over the past decade, the role of treaties in domestic law has become controversial and the subject of much debate. However, the relationship between domestic law and customary international law has been relatively neglected. This is certainly true in Australia for example, apart from the brief flurry of interest after the Federal Court's decision in Nulyarimma v Thompson ('Nulyarimma'). In this chapter, we consider the rationale for customary international law playing a role in domestic law and examine possibilities as to the kind of role it can play. In Part II we outline some justifications for using customary international law in domestic law, including arguments based upon the rule of law; the value of the international system; and achieving justice for individuals. We then canvass some barriers to the use of customary international law in a domestic context: problems of meaning and legitimacy; difficulties of proof; and judges' discomfort with customary international law. We conclude that there are good reasons for giving customary international law a place in domestic law, and that these reasons outweigh the valid concerns about the application of this body of principles. We then tum, in Part III, to outline several ways in which customary international law could play a stronger role in domestic law, using Australia as a case study. In particular, customary international law could be used in domestic law on the basis of legislative enactment; as part of the common law; as a limit on legislative power; as a tool in administrative law; or as an influence on constitutional interpretation.

On June 6, 2013, The Guardian, a British national daily newspaper, and the Washington Post, an American daily newspaper, revealed one of the most significant leaks in U.S. political history. Edward Snowden, former technical assistant for the CIA and employee of the defense contractor Booz Allen Hamilton, disclosed numerous top-secret documents of the U.S. National Security Agency (NSA) and its international partners to the public.  According to American journalist Glen Greenwald, the disclosures revealed that the NSA had established a data collection center in Brasilia, Brazil’s capital. The center allowed the NSA to systematically tap into the local telecommunication network and intercept all forms of communication records and private user data of millions of citizens, including that of President Dilma Rousseff and her top aides. Subsequently, this revelation, among others, sparked an international debate surrounding the right to privacy, data protection, and access to information.

Brazil recognizes the right to privacy and data protection through several provisions and principles outlined in their Federal Constitution, Civic Code, and laws and regulations that address particular relationships, sectors, and professional activities. However, these regulations are oftentimes seen as contradictory and irresolute. The Marco Civil da Internet bill was established in 2011 to develop a better framework - similar to the European Union’s model - that would enhance protection of privacy and data security.  Nonetheless, the bill was placed on standby and didn’t receive “constitutional urgency” until after the 2013 global surveillance disclosures. Consequently, the bill acquired additional, controversial measures, and President Rousseff proposed a four-point plan to develop greater Internet independence and counteract any form of secret surveillance.

This thesis discusses in depth the development of privacy and data protection laws in Brazil, prior to and after the 2013 global surveillance disclosures.  It analyzes the effectiveness and application of these laws previously and explores the hypothetical outcome and implications of President Rousseff’s proposed Internet development plans, including the new and improved Marco Civil da Internet bill. Furthermore, the thesis examines the true socio-political incentives for the Brazilian government to initiate such proposals. Once the pros and cons of the prospective legislation and propositions are taken into consideration, this thesis argues for the most plausible solution to better secure the right to privacy and data protection, maintain peaceful U.S. and Brazil relations, and ensure freedom to access of information on the Internet.