A Response to Milanovic

Louis Henkin Professor of Human and Constitutional Rights, Columbia Law School.  From 2009-2011, the author served as Counselor on International Law to the Legal Adviser of the U.S. Department of State.  The views expressed here are personal and do not purport to reflect the views of the U.S. government.

The period since September 11, 2001 has seen significantly heightened interest in the applicability of human rights treaty obligations abroad. A number of practical factors have contributed to this development: the increased extraterritorial military activity of the United States and its NATO and other allies, particularly activities in grey zones that may not be easily characterized as governed by the law of armed conflict, or in situations that evolved in and out of armed conflict; concerns over the paucity of law governing these activities – notably flamed by the Bush Administration’s claims that neither the protections of human rights law, the Geneva Conventions, nor domestic constitutional obligations were applicable to such extraterritorial activities as prolonged incommunicado detention and renditions; and the increasing willingness of national, regional and international courts and tribunals to assert the applicability of human rights law to address concerns over the existence of legal “black holes.”

As a result, although the trend had begun well before 9/11, in the last decade the International Court of Justice, the European Court of Human Rights, the Inter-American Commission on Human Rights, the Human Rights Committee (“HRC”) and the Committee Against Torture, the Human Rights Council, the General Assembly, and national courts and governments have been increasingly assertive in publicly recognizing that at least some human rights treaty obligations apply extraterritorially. The increased elaboration of rules regarding state responsibility for aiding and assisting has also meant that these obligations cross borders:  the recognition of human rights treaty obligations by some states requires closer attention to compliance by others when states collaborate in joint operations, transfer detainees, share intelligence, etc.

Despite all of this activity, however, the extraterritorial application of human rights treaties has remained strikingly under-theorized.  Few of the states and entities that have recognized extraterritorial application of human rights treaty obligations have articulated a well-developed theory of how human rights treaty law can and should apply abroad. For example, States Parties have offered a range of public positions regarding extraterritorial application of the ICCPR.  Thus, in a 2009 submission to the Human Rights Committee, Australia stated that “[t]he rights under the Covenant that a State party should apply beyond its territory will be informed by the particular circumstances. Relevant factors include the degree of authority and degree of control the State party exercises, and what would amount to reasonable and appropriate measures in those circumstances.” In its Periodic Report to the Committee the same year, Belgium stated that “[w]hen members of such armed forces are deployed abroad, as for example in the context of peacekeeping or peace enforcement operations, Belgium ensures that all persons who come under its jurisdiction enjoy the rights recognized in the International Covenant on Civil and Political Rights.” Germany has represented that “[w]herever its police or armed forces are deployed abroad, in particular when participating in peace missions, Germany ensures to all persons that they will be granted the rights recognized in the Covenant, insofar as they are subject to its jurisdiction.” And the United Kingdom formally accepted that “its obligations under the ICCPR can in principle apply to persons who are taken into custody by British forces and held in British-run military detention facilities outside the United Kingdom.”

Fortunately, into this void has come Marko Milanovic’s masterful new work on Extraterritorial Application of Human Rights Treaties (Oxford 2011).  Together with the European Court of Human Rights’ recent decision in Al Skeini, Marko’s comprehensive volume promises to transform future thinking on this subject.  I will comment on two of its most fundamental insights here.

First, in a major contribution to the discourse, the book brings much needed clarity to the concept of “jurisdiction” as it relates to the geographic scope of human rights treaties.  Most of the major human rights treaties have jurisdictional clauses that govern the contexts in which the treaty applies. Jurisdiction, like “sovereignty,” however, is a concept with many meanings, and its presence in such clauses has befuddled interpreters. Marko demonstrates that many bodies, including the ICJ and the European Court of Human Rights, at times have misunderstood these clauses as invoking classical public international law rules governing when a state may lawfully prescribe or adjudicate conduct in a foreign jurisdiction. He persuasively demonstrates, however, that the term “jurisdiction” is used in many different ways, and that for purposes of establishing the overall scope of human rights treaties, the concept must be understood as “a synonym for . . . power, authority, or control, either over people or over territory, or as a synonym for the territory within which such power is exercised.” Jurisdiction for purposes of the geographic scope of human rights treaties, in other words, refers to the state’s exercise of authority, whether lawful or unlawful, not whether the state could have lawfully acted or legislated consistent with international law rules of jurisdiction. (Indeed, it is precisely unlawful conduct that human rights law may be most interested in controlling). Marko is to be applauded for lending needed clarity to this oft-misunderstood area of law.

The second potentially transformative contribution is Marko’s third, “respect/ensure” model for analyzing when a state’s activities trigger jurisdiction under human rights treaties.  The first two models for control that he considers – control over territory and control over individuals — have long been in play in extraterritoriality debates.  The third model, however, helpfully distinguishes between state obligations to respect and to ensure rights, and would hold that jurisdictional clauses reference a state’s positive obligations to ensure rights through legislative and other means, not the state’s obligations to respect such rights. Among other potential implications, this approach offers an intriguing potential solution to the interpretive stalemate between the United States, on the one hand, and the Human Rights Committee, the ICJ, and close U.S. allies, on the other, over the proper geographic scope of the ICCPR. The stalemate has resulted from the fact that the United States’ conjunctive reading of ICCPR Article 2(1), as creating obligations only with respect to persons who are both “within [the state’s] territory” and “subject to its jurisdiction,” is a more natural reading of the specific text (though not textually compelled),  while the disjunctive reading is more consistent with the treaty’s protective object and purpose.

Marko’s proposed third model could help bridge this divide by recognizing the extraterritorial application of certain Covenant obligations even under a conjunctive reading of Article 2(1).  Under his reading, states could be obligated “to respect” Covenant rights in all circumstances, but “to ensure [Covenant rights] to all individuals within its territory and subject to its jurisdiction.”

This reading is also comfortably supported by the negotiating history of the ICCPR, which reflects a desire to protect States Parties from an affirmative obligation to adopt legislation to guarantee or otherwise to ensure Covenant protections to persons who were only temporarily or partially under their jurisdiction (such as residents of post-war occupied Germany and Japan, or citizens
of a State Party who were residing abroad), in situations where legislating would create conflicts with the legal authority of another sovereign. In these contexts, the delegates recognized that States Parties would not have the capacity — and hence should not bear the legal obligation — to ensure rights under the Covenant to persons who were only nominally subject to their jurisdiction for some purposes, but who were physically located in foreign territory and primarily subject to the authority of another sovereign. Thus, the travaux do not convey a clear intent to preclude extraterritorial operation of the Covenant in all circumstances, but rather, only the states’ desire to avoid affirmative obligations to ensure rights in situations over which they lacked significant legislative authority, as Marko suggests.

Interestingly, Australia’s stated position on extraterritorial application of the ICCPR comports with much of this approach.  In its 2009 submission to the Human Rights Committee, Australia elaborated on its position to the Committee as follows:

18. The only circumstances in which Australia would be in a position to afford all the rights and freedoms under the Covenant extraterritorially would be where it was exercising all of the powers normally exercised by a sovereign State, such as having the power to prescribe and enforce laws, as a consequence of an occupation, a consensual deployment, or a United Nations mandated mission. In no other circumstances could it be said that Australia was in a position to give effect to all of the rights in the Covenant. However, even in these cases, Australia may have obligations to ensure that the existing penal laws of the territory remain in force in line with the obligations upon an Occupying Power or have an obligation to respect the sovereignty of the Host State.

U.N. Hum. Rts. Comm., Replies to the List of Issues (CCPR/C/AUS/Q/5) To Be Taken Up in Connection with the Consideration of the Fifth Periodic Report of the Government of Australia (CCPR/C/AUS/5), paras. 17-18, U.N. Doc. CCPR/C/AUS/Q/5/Add.1 (Feb. 5, 2009).  Australia therefore appears to recognize that while accepting all Covenant obligations is unworkable absent extensive physical and legislative control over a territory, more targeted Covenant obligations could nevertheless be applicable.

Some precedent also exists under current U.S. law for conceptualizing extraterritorial treaty obligations in this way. For example, President Obama’s Executive Order 13,491 on Ensuring Lawful Interrogations, which was adopted “to ensure compliance with the treaty obligations of the
United States, including … the Convention Against Torture,” provides that

in situations of armed conflict, consistent with the requirements of . . . the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person . . . whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.

74 Fed. Reg. 16, Preamble and Sec. 3(a) (Jan. 22, 2009).  This Order reflects a recognition that it is both appropriate, and possible, to direct U.S. agents to “respect” the prohibition on abusive treatment whenever they exercise control over either persons or places abroad.

As Marko notes, his third model in Extraterritorial Application of Human Rights Treaties appears to require a potentially radical reconceptualization of the extraterritoriality project.  Large questions would remain to be worked out, including whether and how this approach could best be reconciled with the direction of the European Court of Human Rights after Al Skeini, what particular state obligations fall into the categories of “respect” and “ensure,” and persistent questions regarding the operation of human rights law in settings of armed conflict and the concept of international humanitarian law as lex specialis – the latter of which the book also addresses.   The challenge may not be as formidable as it might appear, moreover, at least for the United States.  Many of the obligations to respect recognized by the ICCPR already apply to U.S. conduct overseas through other international legal obligations (such as the Geneva, Genocide, and Torture Conventions, as well as customary international law) or through the operation of domestic law and established policy.  And the model’s calibration of extraterritorial obligations in terms of a state’s actual capacity to honor them offers significant promise.  It offers a fresh theoretical framework for thinking about extraterritorial application of human rights treaties that is logical and pragmatic, that finds meaningful support in the ICCPR’s language, history, and subsequent state practice, and that could help alleviate the United States’ isolation on the extraterritorial application of human rights.