A major development in today’s UN Human Rights Committee’s concluding observations is the UN body’s determination that the ICCPR covers US surveillance activities that occur outside US territory (para. 22). But is that so novel?
In written and oral testimony before the PCLOB last week, former State Department Legal Adviser John Bellinger suggested that the Human Rights Committee has maintained that the Covenant applies extraterritorially only in cases in which a state exercises power or effective control over a person such as when one state is occupying another. I think the world of John, but if that’s what he meant to suggest, it is inconsistent with the record.
The Committee has long maintained that the Covenant applies in a broader set of situations. As former Human Rights Committee member, Martin Scheinin wrote in a Letter to the Editor at Just Security (discussing the Koh memo):
“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.’” (emphasis added)
Those two examples are notably also often cited to show that the Committee already interpreted the Covenant to apply extraterritorially prior to the US ratification of the treaty. (We were on notice.)
I would add a third and more important decision by the Committee to the list: its 1984 General Comment concerning the “deployment and use” of nuclear weapons. The deployment and use of nuclear weapons obviously involves actions of a state party outside its territory. And it is that very scenario – the use of lethal military force against individuals not in the custody of the attacking state – that preoccupies international lawyers (like myself) who obsess about whether the Covenant’s extraterritorial jurisdiction requires “effective control” of a person. Indeed, the ICCPR General Comment stands in stark contrast to the European Court of Human Rights’ decision in Bankovic v. Belgium (2001). In that case, the Court held that the extraterritorial scope of the European Convention did not apply to aerial bombardment in a foreign country.
I do not mean to downplay the significance of today’s statement by the Human Rights Committee. Notably, nor do I mean to argue here that it is the correct interpretation of the Covenant. The point is that there is significant practice in the prior work of the Committee — some call it “precedent” — which is wholly consistent with today’s position.