The United States' Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change

• Author: Beth Van Schaack
• Position: Visiting Scholar, Center on International Security & Cooperation, Stanford University
• Pages: 20-65

International Law Studies 2014

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The United States’ Position on the Extraterritorial

Application of Human Rights Obligations:

Now is the Time for Change

Beth Van Schaack*

I. INTRODUCTION

he extraterritorial application of States’ human rights obligations has

emerged as a pressing issue in international human rights law.

1 And, it is

destined to remain so given that States are increasingly asserting their pow-

er abroad in ways that affect the rights of individuals beyond national bor-

ders.2 Although not confined to this context,3 the debate has been most

* Visiting Scholar, Center on International Security & Cooperation, Stanford Univer-

sity. By way of disclosure, I served as Deputy in the Office of Global Criminal J ustice of

the U.S. De partment of State from 2012–13. My office did not participate in the drafting

of submissions to human rig hts bodies. The views expressed herein are entirely my ow n

and do not reflect the position of the State Department or the U.S. government.

1. Examples of the leading scholarship in this area are MARKO MILANOVIC, EXTRA-

TERRITORIAL APPLICATION OF HUMAN RIGHTS TREATIES: LAW, PRINCIPLES, AND POLI-

CY (2011) and KAREN DA COSTA, THE EXTRATERRITORIAL APPLICATION OF SELECTED

HUMAN RIGHTS TREATIES (2013).

2. Kal Raustiala, A Response to Milanovic, OPINIOJURIS (Dec. 2, 2011), http:// opinio ju-

ris.org/2011/12/02/a-response-to-milanovic/ (Noting the increase in States’ “a bility to

project power at a distance, and to move people to distant places,” as well as conflicts that

that seem “to bleed over to many discrete locations that are neither su bject to pervasive

armed conflict nor are belligerently occupied”; all of which make “the extraterritorial ap-

plication questions far harder, but also far more pertinent.”).

3. The issue of the extraterritorial application of human rights law can also arise in

connection wi th States’ policie s and conduct in the realms of immigration, trade, deve l-

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heated in connection with modern-day armed conflicts that entail States

deploying their troops and other personnel on the territory of one or more

other States in confrontation with insurgents, terrorists, and other non-

State actors. Although transnational in their scope and impact, international

humanitarian law (IHL) considers these conflicts to be non-international

armed conflicts (NIACs) because they do not pit two or more High Con-

tracting Parties of the 1949 Geneva Conventions against one another—the

technical predicate for an international armed conflict (IAC).

4 Most con-

flicts in the world today are NIACs, yet the positive law governing target-

ing decisions, detention operations, and the range of other issues that arise

in these conflicts is significantly less developed than that governing IACs.

Moreover, these situations may evolve into—and develop out of—full-

blown conflict, effectively switching IHL on and off.5 The impulse to look

to human rights law to provide added constraints on State behavior, offer a

remedy for victims of violence, and fill lacunae in—or backstop—the ap-

plicable IHL, is thus a compelling one. As a result, the question of the ex-

traterritorial application of human rights obligations has become entangled

in the choice of law debate over when human rights law applies in situa-

tions of armed conflict that are also governed by IHL.6 In many of today’s

transnational NIACs, however, the question of the extraterritorial applica-

tion of human rights law must be resolved before it can be determined

which human rights obligations apply alongside any applicable IHL rules.

This article aims to focus on this antecedent question.

As domestic courts, international tribunals, and human rights treaty

bodies increasingly confront fact patterns and claims requiring a considera-

tion of whether a particular human rights obligation applies extraterritorial-

opment, participation in international organizations, national sec urity outside of any armed

conflict, peacekeeping and peace enforcement operations, foreign intelligence, and law

enforcement.

4. See, e.g., Geneva Convention Relative to the Treatment of Civilian Persons in Time

of War art. 2, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter GC IV].

5. Sarah Cleveland, A Response to Milanovic, OPINIOJURIS (Dec. 5, 2011), http://opinio

juris.org/2011/12/05/a-response-to-milanovic-2/.

6. A number of competing paradigms govern the question of when IHL displaces, or

must be harmonized with, other potentially applicable bodies of law, including human

rights law and domestic law. F or background, see Charles P. Trumbull, Filling the “Gaps” in

the Law Applicable to Non-International Armed C onflicts, INTERCROSS (Jan. 2, 2014), http://

intercrossblog.icrc.org/blog/contemporary-ihl-challenges-use-force-and-non-

international-armed-conflicts; Beth Van Schaack, The Interface of IHL a nd IHR: A Taxonomy,

JUSTSECURITY (Oct. 8, 2013), http://justsecurity.org/2013/10/08/interface -ihl-ihr-

taxonomy/.

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ly, they have struggled to create a defensible and coherent framework of

analysis. This process of doctrinal development and evolution has been

decentralized to a certain degree since the various human rights instru-

ments contain slightly different formulations for their scope of application,

and there is no appellate body to harmonize the law. Nonetheless, through

a process of cross-fertilization and parallel reasoning, a doctrinal conver-

gence is now discernable within the opinions and other views of authorita-

tive decision-makers representing the range of human rights treaty bodies

and tribunals that have confronted the issue. According to this consensus,

States owe human rights obligations to all individuals within the authority,

power, and control of their agents or instrumentalities, and can be found

responsible whenever they cause harm to such individuals. In terms of

which rights and obligations apply extraterritorially, human rights bodies

are increasingly adopting a calibrated approach that hinges on the nature of

the right, and the degree of control the State exercises over the territory,

individuals, or transaction in question.

Starting in 1995, but more consistently during the Bush administration,

the United States in its filings before these human rights bodies

7 has ad-

7. A number of human rights treaties have established committees of independent

experts who are charged with supervising State compliance with treaty undertakings

through periodic State reporting, the issuance of general comments (akin to advisory opin-

ions) and reports, and quasi-adjudicatory claims procedures that are triggered by individual

petitions. Given its ratification status, the United States is subject to four out of the eight

of these bodies operating under the auspices of the UN High Commissioner of Human

Rights: the Huma n Rights Committee (which monitors the International Covenant on

Civil and Political Rights (ICCPR)), the Committee Against Torture (which monitors the

Torture Convention), the Committee on the Elimination of Racial Discrimination (which

monitors the Conve ntion on the Elimination of Racial Discriminati on), and the Commit-

tee on the Rights of t he Child (the US has ratified two Optional Protocols to the Conven-

tion on the Rights of the Child (CRC), but not the parent treaty). The United States has

not yet ratified the International Covenant on Economic, Social and Cultural Rights

(ICESCR), the Convention on the Elimination of Di scrimination Against Women

(CEDAW), the Convention on the Rights of Persons with Disabilities, or the International

Convention on the Protection of the Rights of All Migrant Workers and their Families,

each of which has a corresponding exper ts committee. In addition, the United States is

also subject to the supervisory jurisdiction of the International Labor Organization’ s

Committee of Experts and Committee on Freedom of Association and—by virtue of its

membership of t he Organization of American States (OAS)—the Inter-American Com-

mission on Human Rights (IACHR), although it contests the full reach of that Commi s-

sion as will be discussed. The Human Rights Committee, which monitors the ICCPR,

accepts individual petitions; however, the United States has not ratified the necessary Op-

tional Protocol. See generally Tara Melish, F rom Paradox to Subsidiarity: The United States and