Does the ICCPR Apply Extraterritorially?

The U.S. appeared before the UN Human Rights Committee on Monday — its first appearance since 1995 — to report on its implementation of the International Covenant on Civil and Political Rights (ICCPR). Notably, Matthew Waxman, Principal Deputy Director for Policy Planning at the State Department reiterated the U.S. view that the ICCPR does not apply extraterritorially and thus does not apply to the war on terror. Here is an excerpt from his statement:

[I]t is the long-standing view of the United States that the Covenant by its very terms does not apply outside of the territory of a State Party. We are aware of the views of members of this Committee regarding the extraterritorial application of the Covenant, including the Committee’s General Comment No. 31. While we have great respect for the Committee’s views, as the Committee is aware, the United States has a principled and long-held view that the Covenant applies only to a State Party’s territory. It is the long-standing view of my government that applying the basic rules for the interpretation of treaties described in the Vienna Convention on the Law of Treaties leads to the conclusion that the language in Article 2, Pargraph 1, establishes that States Parties are required to respect and ensure the rights in the Covenant only to individuals who are BOTH within the territory of a State Party and subject to its jurisdiction. First, this interpretation is confirmed by the ordinary meaning of the treaty text. Article 2, Paragraph 1, of the Covenant states explicitly that State Parties are required to respect and ensure the rights in the Covenant to all individuals, and I quote, “within its territory and subject to its jurisdiction.”

Additionally, this plain meaning of the treaty language is also confirmed by the Covenant’s negotiating record. The negotiating record of the Covenant makes clear that the inclusion of the reference to “within its territory” in Article 2(1) was adopted as a result of a proposal made over fifty years ago by U.S. delegate Eleanor Roosevelt – specifically to ensure that States Parties would not be obligated to implement the Covenant outside their territories. Mrs. Roosevelt emphasized that the United States was “particularly anxious” that it not assume “an obligation to ensure the rights recognized in it to the citizens of countries under United States occupation” or in what she characterized as “leased territory” outside the territorial boundaries of a State Party. She further explained: “An illustration would be the occupied territories of Germany, Austria and Japan: persons within those countries were subject to the jurisdiction of the occupying States in certain respects, but were outside the scope of legislation of those States.” Several delegations spoke out against the proposed U.S. amendment at the time, arguing that a nation should guarantee fundamental rights to its citizens outside of its territorial boundaries as well as within them. They suggested that the “and” in the U.S. amendment should be replaced with the word “or.” However, the U.S. amendment to change the text to the current formulation of Article 2 was adopted at the 1950 session by a vote of 8 in favor and 2 opposed, with 5 abstentions. Subsequent efforts to delete the phrase “within its territory” were also defeated. Accordingly, as State Department Legal Adviser Conrad Harper explained to this Committee in 1995, the words “within its territory” had been debated and were added by vote. The clear understanding emerged that such wording limited the State Party’s obligations to within its territory. Thus the territorial limitation in Article 2, far from being inconsistent with the object and purpose of the treaty, reflects the clear and expressed intention of those countries that negotiated the instrument.

The Human Rights Committee apparently disagrees. According to a recent ASIL Insight written by John Cerone:

The Human Rights Committee has consistently held that the International Covenant on Civil and Political Rights can have extraterritorial application, clearly demonstrating its understanding that a State’s jurisdiction extends beyond its territorial boundaries.

In Burgos/Lopez v. Uruguay, the Committee held that Uruguay violated its obligations under the Covenant when its security forces abducted and tortured a Uruguayan citizen then living in Argentina. Following the command of Article 5(1) that “[n]othing in the present Covenant may be interpreted as implying… any right to engage in any activity… aimed at the destruction of any of the rights and freedoms recognized herein,” the Committee reasoned 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.”

Initially, it was unclear whether the Committee’s holding in Burgos/Lopez was strictly limited to extraterritorial violations committed against a state’s own nationals. However, the Committee’s recent practice makes clear that the Covenant applies to a state’s conduct abroad even with respect to its treatment of foreign nationals.

In its General Comment 31, the Committee asserted 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.” Similarly, after affirming that 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,” the Committee noted that “[t]his principle 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.”

The Committee confirmed its position specifically in the context of military occupation. In response to the Israeli government’s assertion that the ICCPR did not apply to its conduct in the Occupied Territories, the Committee stated that “the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party’s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law.”

Treaty interpretation is far beyond my expertise, so I won’t venture an opinion on whether the U.S. position is correct. I’d be curious to know what our readers and my co-bloggers think.