Saturday, January 21, 2012

U.S. ICCPR report coy on extraterritoriality

Over the holidays, the United States released its Fourth Periodic Report to the Human Rights Committee, which is charged with monitoring the 1966 International Covenant on Civil and Political Rights, to which the United States became a party in 1992. (Prior filings from the United States are available here.)
Needless-to-say, there is lots of interest in this 693-paragraph report. This and a subsequent post will focus the United States' vision of the applicability of human rights norms:
► Extraterritorially; and
► In time of armed conflict.
The first question, dealt with in this post, is the extraterritorial application of the ICCPR, and presumably other human rights obligations governed by similar scope-of-application language. (As an example, see IntLawGrrl Diane Marie Amann's 2006 ASIL Insight on the U.S. claim to this effect made before the Committee Against Torture.)
The interpretive question turns on the meaning of the second “and” in ICCPR Article 2(1), italicized below:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,without distinction of any kind…
The United States has historically interpreted this provision to mean that the U.S. owes duties only to those individuals who are both within its territory and its jurisdiction. Thus, in its 2005 Periodic Report (which actually encompassed both the Second and Third Reports, as we were in arrears), the United States insisted at ¶ 130:
[T]he obligations assumed by a State Party to the International Covenant on Civil and Political Rights apply only within the territory of the State Party.
This position stayed consistent through at least 2007.
A more expansive interpretation yields the conclusion that the Convention applies to two classes:
► Persons within U.S. territory; and
► Persons within U.S. jurisdiction.
The latter would include,at a minimum, individuals within the effective but extraterritorial control of the United States. A difficulty of this position is envisioning examples of persons who would be within a state's territory, but not its jurisdiction. One option would include individuals on a portion of the territory of the state that is controlled by a rebel or insurrectionist party in a non-international armed conflict.
In ¶ 505 of its Fourth Report, the United States coyly acknowledges its prior position on this point, but also takes notice of three important legal sources setting forth the contrary view. The paragraph states in full:
505. The United States in its prior appearances before the Committee has articulated the position that article 2(1) would apply only to individuals who were both within the territory of a State Party and within that State Party’s jurisdiction. The United States is mindful that in General Comment 31 (2004) the Committee presented the view that “States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.” The United States is also aware of the jurisprudence of the International Court of Justice (“ICJ”), which has found the ICCPR “applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory,” as well as positions taken by other States Parties.
Thus the United States took specific notice of:
► 1st, General Comment 31 (2004) on the “Nature of the General Legal Obligation Imposed on States Parties to the Covenant,” in which the Human Rights Committee determined that the second, more expansive, interpretation was the correct one. In ¶ 10 of this General Comment, the Committee wrote:
States Parties are required by article 2,paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction.This means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.
► 2d, jurisprudence of the International Court of Justice (namely, ¶ 111 of the 2004 Advisory Opinion on Legal Consequences on the Construction of a Wall in the Occupied Palestinian Territory) finding that the ICCPR is applicable when states exercise their jurisdiction extraterritorially, as in a situation of occupation.
► 3d, the contrary views of other states.
To this list, we can add a number of other judicial opinions, such as the line of cases emerging from the European Court of Human Rights and the Inter-American Court of Human Rights grappling with the reach of the regional human rights treaties.
The Fourth Report's short and humble ¶505 is important; while the United States does not fully denounce its prior views, it does acknowledges that its position is increasingly out of step with the trend of decision.
What a difference a Secretary of State makes…


(Coming up in Monday's post: The United States adjusts course respecting the reach of international human rights law in time of armed conflict)

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