Following my short post on the extraterritoriality of human rights obligations, and our series on lex specialis and the interface between the law of armed conflict and international human rights law, I was invited by the U.S. Naval War College to undertake a deeper dive into this topic for Volume 90 of their International Law Studies.  The paper, entitled The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change, has now been published alongside an article by Prof. Michael N. Schmitt on Charting the Legal Geography of Non-International Armed Conflict and can be found here.

The paper begins with the observation, shared by many, that the extraterritorial application of states’ human rights obligations has emerged as a pressing issue in international human rights law.  And, it is destined to remain so given that states are increasingly asserting their power abroad in ways that affect the rights of individuals beyond national borders.  Although not confined to this context, the debate has been most heated in connection with modern-day armed conflicts that entail States deploying their troops and other personnel on the territory of one or more other States in confrontation with insurgents, terrorists, and other non-State actors. As a result, the question of the extraterritorial application of human rights obligations has become entangled in the choice of law debate over when human rights law applies in situations of armed conflict that are also governed by IHL.  In many of today’s transnational NIACs, however, the question of the extraterritorial application of human rights law must be resolved before it can be determined which human rights obligations apply alongside any applicable IHL rules. This article aims to focus on this antecedent question.

As domestic courts, international tribunals, and human rights treaty bodies increasingly confront fact patterns and claims requiring a consideration of whether a particular human rights obligation applies extraterritorially, they have struggled to create a defensible and coherent framework of analysis. This process of doctrinal development and evolution has been decentralized to a certain degree since the various human rights instruments contain slightly different formulations for their scope of application, and there is no appellate body to harmonize the law.  Nonetheless, through a process of cross-fertilization and parallel reasoning, a doctrinal convergence is now discernable within the opinions and other views of authoritative decision-makers representing the range of human rights treaty bodies and tribunals that have confronted the issue.  According to this consensus, states owe human rights obligations to all individuals within the authority, power, and control of their agents or instrumentalities and can be found responsible whenever they cause harm to such individuals.  In terms of which rights and obligations apply extraterritorially, human rights bodies are increasingly adopting a calibrated approach that hinges on the nature of the right, the degree of control the state exercises over the territory, individuals, or transaction in question.

Starting in 1995, but more consistently during the Bush Administration, the United States has in its filings before these human rights bodies advanced a categorical and contrarian position that the obligations contained in the relevant human rights instruments have no extraterritorial application.  This unqualified position is increasingly out-of-step with the established jurisprudence and with arguments being advanced, and conceded, by our coalition partners and other allies.  As such, the United States now finds itself in a knotty adversarial posture with several human rights bodies on this issue and the related choice of law question.

This dispute is more than a simple matter of competing semantics and treaty interpretations that will be resolved by clever exercises of statutory interpretation or a more searching review of the legislative history.  Rather, there are broad philosophical principles at issue that go to the very heart of the human rights project.  In particular, this debate surfaces a perennial tension between the idealized vision of human rights as universal attributes that we all enjoy simply by virtue of our shared humanity and the more realist view that human rights obligations are merely contractual undertakings that are binding only insofar as states have specifically consented to them as a function of pacta sunt servanda.  And yet, the applicable texts are open to several equally plausible interpretations, and the legislative history is inconclusive as to states’ original intentions; this indeterminacy invites a teleological interpretive approach that must prioritize universality. The law has headed in a direction that is consistent with this imperative and is keeping pace with globalization and the multitude of ways that states can assert their power abroad.  This is fitting, because the alternative—that the treaties would permit states to harm people abroad in ways that would be prohibited at home—is untenable and perverse.

Its firm stance confirms the United States as a persistent objector to any emerging customary norm.  Nonetheless, the failure to acknowledge limited, well-established, and principled exceptions to a strictly territorial application of its human rights obligations ultimately undermines the legitimacy of U.S. arguments in these fora as well as its commitment to the human rights project more broadly.  The paper argues that the March 2014 hearings before the Human Rights Committee (HRC)—the Geneva-based treaty body charged with interpreting the International Covenant on Civil and Political Rights (ICCPR)—offer an opportunity for the Obama Administration to advance a more nuanced and pragmatic position that allows it to remain faithful to its lex specialis arguments, but also to make certain strategic concessions on extraterritoriality.  The proposed shift in approach will demonstrate the United States’ respect for the views of human rights bodies and of its allies, bolster the universality of certain core human rights protections, and do much to bring to a close a historical chapter marred by allegations that the United States was endeavoring to create, and exploit, rights-free zones.  Furthermore, the change of course advocated will not prejudice, and may actually enhance, more meritorious arguments at the United States’ disposal.

The paper proceeds in four steps.  By way of background, it quickly reviews the relevant treaty language and travaux préparatoires.  With reference to exemplary decisions, it then maps the process of doctrinal development across the array of human rights treaty bodies and international tribunals (with a nod to some relevant domestic pronouncements) in order to identify the expanding areas of doctrinal consensus.  Against this backdrop, it presents the United States’ rhetorical positions before several human rights bodies.  By way of prescription and conclusion, it suggests some subtle concessions the United States could make in the forthcoming consultations before the Human Rights Committee, where—as Sarah Cleveland has put it—the United States has reached a “stalemate” on this question.  Although at first glance the United States position appears deeply entrenched, subtle cues in the United States’ most recent submission to the HRC suggests that its position on these issues may be softening and that the time for such a shift in approach may be ripe

I welcome thoughts from our readers – stay tuned for coverage of the Human Rights Committee proceedings next week…