The United States’ Position on Extraterritoriality: The Time For Change Is Now

[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.]

We are on the eve of the United States’ hearing before the 110th session of the Human Rights Committee (HRC) in Geneva.  The Committee just concluded its consideration of the second periodic report of Kyrgystan and will also take up Sierra Leone, Chad, Nepal, and Latvia (all relevant documentation is here).  The proceedings are apparently live-streamed, and there will be a written summary, so we’ll provide coverage.

Our mini-forum on the extraterritoriality of human rights obligations has revealed two distinct trends. The first is the gradual convergence of the law emerging from the various human rights courts and experts bodies that have been confronted with the question of when States’ human rights obligations apply abroad. According to this jurisprudence, these obligations apply whenever a State’s agents or instrumentalities exercise control, authority, or power over the individuals whose rights are in jeopardy, such as by virtue of States’ control of territory, their custody of the individuals in question, and their practical ability to respect and ensure the rights in question. The extent to which these obligations apply extraterritorially is increasingly calibrated to the degree of control the State exercises over the situation in question. The second trend is the growing isolation of the United States in its categorical position that its human rights obligations have no extraterritorial application in light of the text of the relevant instruments and the intentions of the drafters.

Although the United States has since the Bush administration endeavored to preserve this legal argument, it is time to change course. The United States should use this opportunity before the HRC to relinquish an increasingly untenable and ultimately pointless position. By accepting the graduated and fact-specific approach to extraterritoriality uniformly adopted by the human rights bodies and most of this country’s allies, the United States can preserve its ability to argue that its obligations do not apply in particular situations, while accepting that they do apply in other well-established contexts that should be uncontroversial, even for the United States—viz. when a state exercises plenary authority and control over territory within the borders of another State (as in situations of full occupation) or when a state holds individuals abroad in its exclusive custody.

Although every litigator endeavors to win on threshold jurisdictional defenses, relinquishing this particular argument is unlikely to significantly disadvantage the United States, since it will retain a number of more compelling defenses down the rhetorical cascade. In particular, in the most critical non-international armed conflict scenarios, the United States can focus its energies on bolstering its lex specialis argument by educating human rights institutions on its views as to the reach and content of international humanitarian law (IHL). Moreover, it has well-developed arguments on the merits as to why its conduct either does not run afoul of its human rights obligations or is otherwise justified. The receptivity of these bodies to more substantive arguments will be enhanced with the distraction of an antagonistic extraterritoriality argument out of the way. Indeed, it could be argued that because the policies so often at issue here are so momentous, the United States should be willing to set aside hyper-legalized stratagems altogether and defend its actions on the merits. A recognition that human rights law applies extraterritorially in certain situations enhances the perceived legitimacy of U.S. government action overseas in general, particularly at a time when this country is under attack for its drone and surveillance policies.  Continuing to insist that the International Covenant on Civil & Political Rights has no extraterritorial application will have the opposite effect and simply feed claims that the United States is bent on acting lawlessly abroad.

The proposed change of course may inure to the United States’ benefit in other ways. Accepting this case-by-case approach will ensure that the U.S. position is better aligned with the views of, and obligations placed on, its coalition partners and other allies. As a practical matter, when the United States acts in coalition, it needs to harmonize its actions with its allies who increasingly accept—some more grudgingly than others—that they are bound by their human rights obligations when they operate abroad. For many of these allies, this includes obligations under the European Convention for the Protection of Human Rights & Fundamental Freedoms and its more robust enforcement regime.  Subjecting the United States to the same legal framework as its allies will encourage collaboration by ensuring that all parties involved in a particular operation or transaction will be judged by the same standards and have the same potential exposure to censure.  In this regard, the United States is in a posture that is similar to that governing its compliance with Additional Protocols I and II, which most of its allies have ratified. As a practical matter, the United States must adhere to these treaties if it is engaged in joint military action with such partners.

To be sure, the United States is uniquely vulnerable to claims connected to its extraterritorial activities given the degree to which it has stationed troops and other personnel abroad and the nature of the armed conflicts and counterterrorism operations in which it is engaged. And yet, in considering the propriety of changing course, it should keep some perspective. The United States is not subject to any human rights court or tribunal with the power to enforce a judgment against it. And, the option of simply ignoring, or acknowledging while contesting, the pronouncements of a treaty body is always available to the United States. To be sure, there are costs to a finding of responsibility by a human rights institution. These include reputational costs (such as loss of prestige) and damage to the United States’ self-image as a rights-respecting nation that adheres to the rule of law. And yet, the concrete implications that would follow from abandoning an increasingly strained argument are minimal, particularly given that the United States is already subject to many of the same legal rules by virtue of other treaties, such as the Geneva Conventions, whose extra-territorial application is uncontested.

In any case, a fervent fealty to this legal position is having little practical effect. The United States’ actions overseas are already subject to searching review by these human rights bodies, as Ryan Goodman has noted. The United States has largely consented to this process, “as a courtesy.” This attitude no doubt reflects a certain degree of deference to these institutions and to other elements of the international community, but also the pragmatic recognition that responding to allegations of abuses with a weak jurisdictional defense followed by silence on the merits is counterproductive. At the same time, a willingness to respond vigorously to allegations on the merits offers the United States a forum to advance legal justifications for its actions, proffer factual details and clarifications, address common misconceptions and hyperbole, announce important reforms to law and policy, and admit that its record is not perfect. The United States has come a long way in its willingness to report on, and entertain questions about, its overseas activities; reverting to total silence is no longer a realistic option. As such, it is unclear why any particular executive agency feels so compelled to preserve an argument that is deployed exclusively in theory and not adhered to in practice.

Finally, perhaps the most compelling reason for the United States to adopt a different approach is deontological: because it is the right thing to do. A global human rights system that allows states to act without constraints when they are offshore is untenable.  It invites impunity and, worse, the outsourcing of violations, particularly in this era of globalization. Some measure of extraterritorial application ensures that states’ human rights obligations follow states when they exercise control, power, or authority over territory, persons, or transactions abroad.  President Obama entered the White House committed to restoring the United States’ reputation as a rights-respecting and rights-promoting nation as well as its commitments to the rule of law and to international law in particular.  Some progress has been made on this front.  However, having the courage to make a strategic concession on extraterritoriality is the obvious next step and would 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.  It would also signal that the Obama Administration is willing to accept legal obligations regarding the treatment of individuals abroad beyond those that have already been imposed on the Bush Administration by the federal courts and Congress.

All that said, it will obviously be difficult for the United States to give up an argument that has become almost axiomatic in its interventions in human rights fora.  This is all the more so without senior leadership in the Legal Adviser’s Office; the Under-Secretariat for Civilian Security, Democracy, and Human Rights; and the Bureau of Democracy, Human Rights, and Labor. The Savage article suggests that those of us who believe that the Obama Administration should strive to make forward progress in the realm of human rights will be disappointed.  I hope he is proven wrong and that the leadership corps of the Obama Administration recognizes that the time has come for the United States to relinquish a legal argument that is neither persuasive, nor efficacious, nor beneficial. 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).