[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 Daskal, Daphne Eviatar, Ryan Goodman, Jonathan Horowitz, Marko Milanovic, and Beth Van Schaack, and Letters to the Editor from Manfred Nowak and Martin Scheinin.]
This week the 4th periodic report of the US under the International Covenant on Civil and Political Rights (CCPR) will be examined by the UN Human Rights Committee in Geneva. One of the most controversial issues is the international obligation of the US, as of any other State party, to respect and apply the rights of the Covenant not only to its own citizens at home, but also in relation to acts of its military, security or intelligence agents abroad. Does the US violate its international human rights obligations when its agents detain, torture or kill (e.g. by means of drones) people in Afghanistan, Iraq, Pakistan, Yemen or any other country in the world, when suspected terrorists are detained and subjected to harsh interrogation methods at Guantanamo Bay or in secret CIA detention centers around the world or when the NSA subjects millions of human beings in all corners of our planet to secret electronic surveillance? In the following, I will attempt to answer these questions on the basis of international human rights law, practice and jurisprudence. My contribution will, however, not deal with the equally controversial question closely related to this, namely the applicability of international human rights law in times of armed conflict.
Article 2(1) CCPR reads as follows: “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 …” In principle, the meaning of these words have been interpreted in different ways. The first interpretation is conjunctive which means that States must respect and ensure the rights of the Covenant only to individuals who are both in its territory and subject to its jurisdiction. This is the interpretation applied by the US since the Clinton Administration, but in particular during the Bush Administration, as recalled by Charlie Savage in the NYT. It means in practice that US agents may commit all human rights violations they wish as long as they do it outside the territory of the US. No other State in the world would interpret the Covenant in such a narrow sense. The second interpretation is the one which Harold Koh wished the Obama Administration to adopt, but obviously without success. He distinguishes between the obligation to respect, i.e. refraining from unjustified interference, and the obligation to ensure, i.e. taking positive measures to protect and fulfil the rights of the Covenant. His Memorandum Opinion concludes 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; but that the Covenant only imposes positive obligations on a state to ensure rights … for individuals who are both within the territory and subject to the jurisdiction of the State Party.” If adopted by the Obama Administration during this week in Geneva, this would be a welcome step in the right direction and would bring the US closer to its allies and more in conformity with the requirements of international human rights law, as explained by the jurisprudence of the International Court of Justice, the European Court of Human Rights, the UN Human Rights Committee and other human rights monitoring bodies. But, as John Bellinger, former Legal Adviser in the State Department during the Bush Administration, predicted (according to Charlie Savage), the Obama Administration will not change its position, primarily because of the NSA controversy. I just discussed this question with John Bellinger during a lunch speech he delivered today at Stanford Law School, and he confirmed this expectation.
Although I have a lot of sympathy with both Memoranda of Harold Koh (in relation to the CCPR and the UN Convention against Torture), I think that we will have to apply a third interpretation of Article 2(1) and similar provisions on jurisdiction in other international human rights treaties in order to properly react to the challenges of human rights implementation in a rapidly globalizing world. First of all, we have to distinguish between extraterritorial application of international treaties in the broader and in a more narrow sense. As I have argued in a book on Universal Human Rights and Extraterritorial Obligations edited by Mark Gibney and Sigrun Skogly in 2010, the principle of non-refoulement or the obligation to respect and ensure human rights on board of ships or aircrafts or on occupied territory constitute only an extension of the territorial principle but not extraterritoriality in the strict sense. Turkey, which occupied the Northern part of Cyprus in 1974, has an obligation, as the European Court of Human Rights has stressed repeatedly, not only to respect, but also to ensure all human rights to the people living in Northern Cyprus in the same way as in its “own” territory. The same holds true for the US obligation to respect and ensure all human rights to people living in Guantanamo Bay, whether as soldiers or detainees, because it exercises full sovereignty over this territory (see already Rasul v. Bush). Of course, the positive obligations to protect human rights against abuses by private parties and to fulfil these rights by means of legislative, administrative, political and judicial measures is always subject to the principle of due diligence, whether at home or abroad. States have only the obligation to take all measures that can reasonably be expected from them in the particular circumstances. Since Turkey has occupied the Northern part of Cyprus already for 40 years, its positive obligation to fulfil the right to marry, just to take one example, by taking the required legislative and administrative measures to enable the inhabitants of Northern Cyprus to get married, are in my opinion pretty much the same as in other parts of Turkey. The situation might have been different during the US occupation of Iraq. But there can be no doubt that every occupying power must take the appropriate measures (that can reasonably be expected from an occupying power under the specific circumstances applying) to ensure that the people living under occupation enjoy their right of access to courts, education, minimum health care services etc. Similarly, those responsible for ships and aircrafts under the flag principle are not only under an obligation to respect human rights by non-interference, they are also required to take the necessary positive measure to feed their passengers and provide emergency healthcare. The same is true for the principle of non-refoulement, as the European Court of Human Rights has, e.g., ruled in the Al-Sadoon case relating to the prohibition of transferring two Iraqi citizens arrested by British forces in Iraq to Iraqi custody. In other words: Whenever a State exercises full control over another territory than its “own” territory, whether as a result of a lease (as in the case of Guantanamo Bay) or occupation (as in the case of Northern Cyprus), or because of the “extraterritorial” status of embassies and consulates, or on a ship or aircraft, this is only an extension of the principle of territoriality which means that States have, in principle, the same obligations to respect, protect and fulfil human rights as in their “own” territories, all positive obligations being, however, subject to the principle of due diligence. In this respect, my interpretation goes further than that of Harold Koh and is more in line with academics, such as Marko Milanovic.
This brings me to the question of extraterritoriality in its strict, narrow sense, i.e. to the exercise of State “authority or effective control over a particular person or context without regard to territory,” as Harald Koh writes. In this respect he argues, in full conformity with international case law, that the US has an obligation to respect human rights. But what does “effective control over a person” mean in practice? Some authors, such as Jennifer Daskal in her contribution to this “mini forum,” think that “effective control” only means custody. Similarly, the European Court of Human Rights has created much confusion with its unfortunate Bankovic decision, as Rick Lawson, Marko Milanovic and others rightly have pointed out. A correct interpretation of “effective control” over a person must, however, take the specific right at issue into account. A State can only be held accountable for torture abroad if the victim is in custody, because the powerlessness of the victim is a definitional criterion for torture. The same holds true for the right to personal liberty, which is only violated in case of arbitrary arrest and detention. But the right to life can also be violated outside the context of detention, as the European Court of Human Rights has ruled, e.g., in Issa v. Turkey (concerning the killing of Iraqi shepherds by Turkish military forces in Iraq) or Al-Skeini v. UK (concerning the killing of Iraqi citizens by British troops patrolling the streets of Basra). The same holds true for the right to privacy and data protection, as Martin Scheinin rightly pointed out in his reply to Jennifer Daskal. The main principle that should guide all our discussions and deliberations on this controversial issue was already expressed by the UN Human Rights Committee in the early 1980s when finding Uruguayan agents violating various human rights of Uruguayan citizens in Brazil and Argentina. No State has the right to avoid its international human rights obligations by simply taking action outside its territory which it would be prohibited from taking “at home.”
Let us explain this argument by a hypothetical case, outside any situation of armed conflict. Let’s assume that US agents take certain action in Germany to fight terrorism. If they would kidnap and torture a German citizen on German soil, even Jennifer Daskal would agree that this woman was under US effective control, and that the obligation of the Covenant to respect her rights to personal liberty and personal integrity would apply. Let’s then assume that these agents are simply surrounding her house and prevent her from leaving it. This would amount to house arrest, which under international human rights law also amounts to an interference with her right to personal liberty. Now the US agents open the mail delivered into her mailbox and put video and audio recording equipment around the house in order to tap her private conversations. Would this fulfil the test of “effective control over a person” in respect of the right to privacy for Jennifer Daskal? Probably her answer would be yes only if she is at the same time under house arrest or any other form of custody. But she might perhaps be free to leave her house and the surveillance equipment has been installed secretly. Then the same interference with her right to privacy would no longer trigger international responsibility under the Covenant? This seems absurd. The same holds true, if NSA applies secret surveillance of her telephone, email and other electronic communication from a more distant operation center in Germany or even from the US. In other words: the real test of “effective control” in the case of surveillance and data protection is not whether the person is under the direct control (custody) of the foreign agents, but whether the correspondence and communication is under direct control, which is the case with any surveillance measure. Whether such surveillance is lawful or not is another question, but the application of international obligations should be out of question.
Manfred Nowak is Professor of International Law and Human Rights at Vienna University and presently Austrian Chair Visiting Professor at Stanford Law School. He was UN Special Rapporteur on Torture from 2004 to 2010, co-publishing UN reports on the situation of detainees at Guantanamo Bay (2006) and on a global study on secret detention in the fight against terrorism (2010). His various books include detailed legal commentaries on the International Covenant on Civil and Political Rights (2nd ed 2005) and on the UN Convention against Torture (2008).