[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.]

Dear Editors,

In her 7 March entry (Extraterritorial Surveillance Under the ICCPR . . . The Treaty Allows It!) Jennifer Daskal expressed the view that:

“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.”

Jennifer wrote “to dispel a myth” about the potential effect on surveillance operations if the ICCPR were deemed to have extraterritorial application. Clearly, her concern that focusing the extraterritoriality discussion on NSA surveillance might risk drawing the correct conclusions concerning extraterritorial obligations in issues such as torture or detention. While sympathising with her good intentions, I want to assert that the right to privacy is not excluded from extraterritorial application, either. It is a human right, with good reason included as article 17 in the ICCPR. As many other human rights, it entails both positive and negative state obligations. There is no textual or other reason to define the right to privacy so that it could never have extraterritorial effect.

In contesting Jennifer’s view, I find support in the formulation presented by Harold Koh in the Conclusion of his 2010 Opinion on the extraterritorial effect of the ICCPR:

“that in fact, the Covenant does impose obligations on a State Party’s extraterritorial conduct in certain exceptional circumstances – specifically, that a state is obligated to respect rights under its control in circumstances in which the State exercises authority or effective control over a particular person or context without regard to territory…”

In the original, the word “respect” was underlined, to make clear that this part of Koh’s conclusions related to so-called negative state obligations not to engage in human rights violations, even extraterritorially. Rightly, Koh was more restrictive as to positive obligations “to ensure” rights abroad. Elsewhere in the Opinion, namely in its section on Implications, Koh stated that “a state acquires obligations under the Covenant along a sliding scale based upon its own actions”. This is all fine.

But let me repeat the first quote from Koh, now with my own emphasis:

“that in fact, the Covenant does impose obligations on a State Party’s extraterritorial conduct in certain exceptional circumstances – specifically, that a state is obligated to respect rights under its control in circumstances in which the State exercises authority or effective control over a particular person or context without regard to territory…”

To trigger the negative obligation of the state not to violate human rights, there is no exclusive requirement of effective control over a territory, or even over a person. Those demanding conditions would often be met when we speak of many classic types of human rights violations, such as arbitrary killings, disappearance, torture or arbitrary detention. Indeed, those types of violations tend to occur through the exercise of effective control over a physical space and/or over a human being physically in the hands of state agents.

Wisely, Harold Koh also referred to “rights under its control” and to “authority … over a person or a context” as tests that trigger the applicability of the negative state obligation not to violate someone’s human rights extraterritorially.

In Gueye et al. v. France (196/1985), the Human Rights Committee in 1989 found a violation of ICCPR article 26 (nondiscrimination) when France had enacted legislation that provided for the same service in the French military a lower pension to retired Senegalese soldiers living in Senegal than it provided to Frenchmen living in France (or even living in Senegal). The act of legislating occurred in France but its discriminatory effect was felt in Senegal where the authors lived as beneficiaries of French pensions.

In Sophie Vidal Martins v. Uruguay (57/1979) the Human Rights Committee in 1982 found a violation of article 12 (freedom of movement) when Uruguay had refused to issue a passport to its citizen residing in Mexico, “thereby preventing her from leaving any country”.

It can be discussed to what extent these cases pertain to negative or positive state obligations, and probably one would have to conclude in favour of Koh’s “sliding scale” approach as to where the trigger for extraterritorial state obligations was. The point to be made here, however, is that in respect to human rights violations such as discrimination or preventing someone from leaving a country, the relationship between the violating state and the individual need not amount to effective control over a territory or a person. It is sufficient that a state has control over someone’s rights, or authority over a person or context.

The situation is the same with privacy. The question about surveillance abroad is not whether it per se is prohibited. The pertinent question is whether such specific forms of surveillance that would constitute a human rights violation if performed at home will be immune from review under the ICCPR if performed by the same state in relation to the same individuals but outside the national territory. The answer must be the same as in Gueye and Vidal Martins: even if the legislation was passed or the decisions were taken at home, and even if the consequences were felt abroad, it still is a human rights violation if a state engages in practices that constitute an unlawful or arbitrary interference with, or attack upon, an individual’s privacy. Some surveillance practices do, others don’t. But the physical location of the individual is not decisive.

Martin Scheinin is a Professor of International Law and Human Rights at the European University Institute and a former member of the Human Rights Committee (1997-2004).