My friend and former legal adviser to the State Department John Bellinger recently testified before the Privacy and Civil Liberties Board (PCLOB) on the question whether international human rights law (IHRL) imposes an extraterritorial obligation to respect privacy rights of foreign populations and, in particular, whether that body of law might regulate US foreign surveillance programs. I was also invited to participate on the PCLOB expert panel, but had an unavoidable conflict.

I respectfully disagree with John about three items in his testimony. One of these I mentioned in a recent post – John’s description of the views of the UN Human Rights Committee — to which John graciously responded over at Lawfare this weekend. In this post, I very briefly identify the other two concerns, and then dive into a bit more detail about the issue John addresses: what is the long-standing view of the Human Rights Committee? I will also address John’s point about the implications of this debate for Senate approval of the UN Convention on the Rights of Persons with Disabilities.

At the outset, I should highlight two points of agreement. First, John and I may agree that some of the Human Rights Committee’s interpretations of the ICCPR are wrongly decided. Second, John and I may agree that even if one applies the obligation to respect privacy rights extraterritorially, current NSA programs might nevertheless satisfy those obligations (notwithstanding the Committees’ concluding observations last week). Neither of those potential points of agreement, however, alter the following three concerns.

1. Customary International Law

John’s testimony before the PCLOB did not analyze whether customary international law includes any relevant extraterritorial obligations to respect privacy rights. His written and oral testimony contended that no international law applies (e.g., he stated that “international law, neither the ICCPR or any other part of international law, placed international legal restrictions on the NSA” (emphasis added)). Yet he explicitly limited his analysis exclusively to the ICCPR.

As I describe in a previous post, a respectable position can be mounted – relying on the US military’s 2013 Operational Law Handbook and The Restatement on Foreign Relations Law  — that the US has long accepted the extraterritorial application of the right to privacy as a matter of customary international law (see also a separate post about extraterritorial application of IHRL in general). [Update: In a response to this post, John writes that he “would be flabbergasted if any U.S. Government lawyer who worked on the Operational Law Handbook believes that there is a customary international law principle … that places limits on electronic surveillance by the U.S. Government (or any other government) of foreign nationals outside its own territory.” Note what John does not say: that he would be surprised if those lawyers believe there is a customary international obligation not to engage in “consistent patterns of gross violations” of the right to privacy of foreign populations. That was my only point — whether there is such a customary international right to privacy. John’s response doesn’t exactly dispute it.]

That said, this oversight is by no means peculiar to John. Many commentators who argue in favor of extraterritorial application of privacy rights — including other panelists at the PCLOB hearing – have focused on the ICCPR and overlooked the possibility that customary international law might have something to say. And, indeed, the leading book on the extraterritorial application of the ICCPR suggests, in passing, that it would be “quite unlikely that states have assumed more extensive obligations under customary human rights law than they have done under treaty law.” [One answer to that puzzle is that at least until an opportunistic interpretation in 1995, US officials, dating back to Eleanor Roosevelt, had long accepted that the ICCPR and customary international law both include extraterritorial human rights obligations.]

2. Foreign governments’ invocations of extraterritorial privacy obligations

John’s testimony states, “While many foreign governments have objected to NSA surveillance, none (so far as I am aware) believes that the ICCPR or any other provision of international law imposes an obligation to respect the privacy rights of non-citizens.”

John’s testimony, however, did not mention or address UN member states support for the December 2013 UN General Assembly resolution on the right to privacy and mass surveillance. As I explained in a previous post:

Not only is there solid support for the proposition that states recognize privacy constraints on foreign surveillance as a matter of international human rights; one can identify over fifty states –if not the overwhelming majority of the UN member states — that have done so explicitly. In late 2013, fifty-six states sponsored the UN General Assembly Resolution on “The Right to Privacy in the Digital Age.” The Resolution, adopted with overwhelming support from UN member states, focuses on “mass surveillance” and was inspired by foreign governments’ opposition to NSA operations abroad. … As Philip Alston has explained, the Resolution is expressly grounded in both the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights.

Indeed, it is worth adding a historical note here: the drafting of the UN resolution was set off by a major speech by President of Brazil Dilma Rousseff to the General Assembly. The Brazilian President called the Snowden revelations in which “personal data of [Brazil’s] citizens was intercepted indiscriminately” nothing less than “a breach of International Law.” She also stated that “[t]he right to safety of citizens of one country can never be guaranteed by violating fundamental human rights of citizens of another country;” and added, “I cannot but defend, in an uncompromising fashion, the right to privacy of individuals and the sovereignty of my country. In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy.” And, indeed, Brazil, along with many other states, favored even stronger language than the final text of the GA Resolution.

A fair argument could be made that the positions of foreign governments is hypocritical when viewed in light of their own surveillance practices. But that’s a different point than what positions they have adopted as to whether “the ICCPR or any other provision of international law imposes an obligation to respect the privacy rights of non-citizens” abroad.

3. The practice of the Human Rights Committee

In his written testimony John stated that the Human Rights Committee has placed a high threshold on the extraterritorial application of the ICCPR. He wrote:

“In General Comment 31, the Human Rights Committee defined the phrase’subject to’ a party’s ‘jurisdiction’ to include people ‘within the power or effective control power or effective control[sic] of the forces of a State Party acting outside its territory’ – for example, because one state is occupying another. … Accordingly, the ICCPR does not impose limits on NSA surveillance of non-U.S. nationals in, for example, China or Germany or Russia or France, because the citizens of those countries are not subject to United States jurisdiction.” (emphasis added)

In his reply to me, John does not repeat the language about foreign occupation. He does, however, refer to language adopted by the Committee in its General Comment 31 which might suggest the Committee supports only a high threshold. John writes in his post at Lawfare:

“In paragraph 10 of its General Comment 31 (2004), the Committee said that the obligation of States set forth in article 2, paragraph 1 ‘means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.‘  Paragraph 10 goes on to state that the ICCPR also ‘applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.’” (emphasis added)

John’s post, however, omits what Paragraph 10 says before it “goes on to state” that forces of a state exercising effective control are “also” an example of the extraterritorial reach of the Covenant. In the missing sentence, the Committee gives another example that involves a very low threshold: the rights of non-citizens who apply for admission to the territory of a state for immigration purposes. Those situations are far from the type of effective control one might envision with belligerent occupation and peacekeeping operations carried out by a states’ armed forces. Here is the missing sentence:

“As indicated in General Comment 15 adopted at the twenty-seventh session (1986), the enjoyment of Covenant rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality or statelessness, such as asylum seekers, refugees, migrant workers and other persons, who may find themselves in the territory or subject to the jurisdiction of the State Party.”

Indeed, in General Comment 15, the Committee interpreted the Covenant to require a state, for example, to abide by principles of non-discrimination and respect for family life in deciding “who it will admit to its territory.” Once again, a very low measure of “power” or “control” over the person.

John highlights the fact that the two cases I cited were decided over 15 years before General Comment 31 (or more precisely the two cases that former Committee member Martin Scheinin, whom I quoted at length, cited for the same proposition). What’s the implication of the time interval? I assume John means to suggest that General Comment 31 may reflect a new and different approach in the Committee’s thinking—i.e., that the Committee has ratcheted up the power or effective control threshold over time and somewhat qualified or discarded these older cases.

As the omitted sentence shows, however, General Comment 31 referred even further back in time (18 years) citing its earlier interpretations as the basis for its position on extraterritoriality.

Also, recall I cited the much older cases to emphasize that the Committee had already articulated a low jurisdictional threshold before the US ratified the Covenant. There are ample recent cases to demonstrate the Committee has maintained this position. One of the earlier cases that Scheinin and I dicussed involved Uruguay’s denial of a passport to a Uruguayan citizen living in Mexico. The Committee stated: “The issue of a passport to a Uruguayan citizen is clearly a matter within the jurisdiction of the Uruguayan authorities and he is ‘subject to the jurisdiction’ of Uruguay for that purpose.” In 2004, the Committee decided another case involving a state’s denial of a passport to a citizen, except this time the complaint had been born and lived her whole life in another country (El Ghar v. Libya, communication 1107/2002). In 1993, the Committee stated that Iran violated the Covenant for a fatwa calling on others outside of Iran to kill “a foreign writer, Mr. Salman Rushdie … even outside the territory of Iran”—essentially a galaxy apart from the form of effective control associated with belligerent occupation and the like. In 2012, the Committee concluded that Germany should “take appropriate measures to strengthen the remedies provided to protect people who have been victims of activities of such business enterprises operating abroad.” In 2002, the Committee held that a state violated the right of its national living and working in another country for unfairly suspending him from public service and failing to reinstate his employment (Gedumbe v. DRC, communication 641/1995).

So expansive is the Committee’s reading of jurisdiction that leading expert on the extraterritoriality of human rights treaties, Marko Milanovic writes: “unless I am mistaken, there is no case in which the Committee rejected the communication of a person who made an arguable case that his or her rights were violated extraterritorially on the grounds that this person was not subject to the jurisdiction of the relevant state.” In other words, we do not even know the low threshold. And, the Committee has expressly stated as an interpretive principle that “it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory” (Lopez Burgos v. Uruguay, communication R.12/52). Indeed, Milanovic criticizes that principle because, in his view, it “would lead to the Covenant applying to any extraterritorial state action.” (For a similar criticism of the Committee’s approach, see Peter Margulies’s forthcoming law review article in Fordham Law Review on the ICCPR and NSA surveillance; and see also Beth Van Schaack’s article in the Naval War College’s International Law Studies.)

Finally, let’s turn to John’s treatment of the facts in the two older cases.  In his post, John characterizes the two cases as involving individuals over whom the governments had “some at least some control.” That seems like a significant concession: we are already far from belligerent occupation and much closer to the limited forms of (power and) “some control” over people’s lives that may occur with intrusive surveillance.

Furthermore, John attempts to distinguish one of the cases – discrimination in the denial of pensions — by noting that the complainants were “Senegalese nationals who had served in the French Army when Senegal was part of the French Union” (i.e., they were previously colonial subjects). However, the Committee did not see that fact as part of the basis for jurisdiction. On the contrary, the Committee explained: “The Committee recalls that the authors are not generally subject to French jurisdiction, except that they rely on French legislation in relation to the amount of their pension rights” (para. 9.4). And the Committee explained that due to the timing of the entry into force of France’s ratification of the treaty and a French reservation precluding retrospective application, “[t]he Committee took the view that it had no competence to examine the question whether the authors were victims of discrimination at any time prior to 17 May 1984” (para 5.3). To add one more nail to this analysis, the complainants actually alleged that they were treated properly when Senegal was a member of the French Union, but were discriminated against by the introduction of new French laws that treated them differently 14 years after Senegal gained independence.

* * *

In the conclusion to his post, John astutely observes that this debate implicates the prospect of Senate approval of the UN Convention on the Rights of Persons with Disabilities. However, in some important respects, I believe John gets this backwards. He contends that the argument that ICCPR privacy rights apply extraterritorially, including to surveillance activities, is a stretch and thus undermines efforts to get the Senate to approve other treaties like the Disabilities Convention. John writes:

“Such strained interpretations of existing human rights treaties are, unfortunately, counterproductive because they make it harder for the Executive branch to convince skeptical Republican Senators to approve new human rights treaties, such as the U.N. Convention on the Rights of Persons with Disabilities.”

John is of course correct but in a limited sense.

And, at the same time, the opposite is true with respect to the question of extraterritorial jurisdiction of the ICCPR (excluding for the moment the question of privacy rights in particular). Critics of the Committee’s position often fail to acknowledge the degree to which recent US administrations’ interpretations of the treaty contradict the US government’s original understanding in drafting the treaty, constitute an extreme outlier compared to the position of other state parties, and diverge from interpretations of the treaty announced before US ratification. Those critics, instead, paint a picture that the US was essentially hoodwinked by the Committee after the fact and by opportunistic human rights advocates. The Senators contemplating ratification of the Disabilities Convention should be assured that the US generally knew what it was getting into when it joined the ICCPR. And the more outlandish interpretations by the Committee are fairly easily detected and well understood by leading human rights experts and legal practitioners, and appropriately discounted by governments.

[Update: In his response to this post, John also writes “if [human rights advocates] were to suggest that the views and decisions of treaty monitoring bodies are binding, they would infinitely complicate the ability of the Executive branch to persuade the Senate to agree to new human rights treaties; it would be impossible for the Senate to know what obligations it is agreeing to if those obligations would be constantly evolving according to the whims of the treaty monitoring bodies.”  I largely agree, but this argument looks like a red herring. I am unaware of any of the advocacy groups making an argument that the views of the treaty monitoring bodies are binding. The suggestion itself — that there might be such a group of advocates making that claim — may worry the Senate unnecessarily.]