Extraterritorial Surveillance Under the ICCPR . . . The Treaty Allows It!

[Editor’s Note: Just Security is holding a “mini forum” on the extraterritorial application of human rights treaties in light of the release of two State Department memos and the US appearance before the UN Human Rights Committee the week of March 10, 2014. This series includes posts from Jennifer DaskalDaphne EviatarRyan GoodmanJonathan HorowitzMarko Milanovic, and Beth Van Schaack, and Letters to the Editor from Manfred Nowak and Martin Scheinin.]

Harold Koh’s memos are well worth a read, laying out a persuasive and nuanced analysis as to why the United States key international human rights treaties ought to be interpreted to have extraterritorial scope in at least some circumstances.   While there is much more comprehensive commentary to come, my goal here is a modest one: to  dispel a myth about the potential effect on surveillance operations if the International Covenant on Civil and Political Rights (ICCPR) were deemed to have extraterritorial application.

Two key points are worth emphasizing from the outset:

First, by a longstanding interpretation of the treaty terms (which limits its application to persons “subject to [the State party’s] jurisdiction”), its extraterritorial reach extends only to persons within the acting state’s authority or under its effective control, such as a detainee in U.S. custody.

Second, under Koh’s analysis, positive and negative rights are understood differently.  Thus, while there is an obligation to ensure rights laid out in the ICCPR for persons within a state’s territory and subject to its jurisdiction, Koh argues that states need only respect those obligations with respect to persons outside its territory.

In the face of this analysis, concerns about the effect on surveillance should be understood as a red herring.  From the NYT article:

John Bellinger, the top State Department lawyer in the Bush administration, noted that the presentation comes in the midst of a furor over National Security Agency surveillance. The rights treaty also bars “arbitrary or unlawful interference” with privacy, although it is not clear that it requires parties to respect rights of foreigners not in its custody   “This is a particularly sensitive time because of the N.S.A. controversy,” he said. “I cannot imagine the U.S. government would change its position, even if it were previously tempted to.”

But what the New York Times describes as “not clear” actually is quite clear: Persons subject to U.S. surveillance, without more, are not in its jurisdiction – and thus not covered by the extraterritorial application of the relevant provisions of the ICCPR.

Put another way, a determination that the ICCPR has extraterritorial reach would not endow targets of U.S. surveillance with any additional privacy rights vis-à-vis the United States, and it would not impose any affirmative obligations on the United States to respect those rights.   It would have zero effect on NSA operations abroad.  And while some have put forward creative arguments as to why the ICCPR’s privacy rights might in fact have extraterritorial reach, no court, treaty body, or government has ever endorsed that view.

In sum, there may very well be a need for greater regulation of surveillance operations overseas.  But the ICCPR is not the place to find it. 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).