Application of human rights treaties extraterritorially during times of armed conflict and military occupation.

Author:Dennis, Michael
Position:The Extraterritorial Application of Human Rights - Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law

The panel was convened at 10:45 a.m., Thursday, March 30, by its chair, Anthea Roberts of Debevoise & Plimpton LLP, who introduced the panelists: Orna Ben-Naftali of the College of Management Academic Studies, Rishon LeZion, Israel: Michael Dennis of the U.S. Department of State; Shaheed Fatima of Blackstone Chambers, London; and Robert McCorquodale of the University of Nottingham.

INTRODUCTORY REMARKS BY ANTHEA ROBERTS ([dagger])

States are increasingly acting outside their borders, but do their human rights obligations follow them? This panel will consider whether human rights treaties apply extraterritorially and, if so, to what extent. Inherently controversial, this topic touches upon many debates currently in the news, including actions by the United States in Guantanamo, allied forces in Iraq, and Israel in the occupied territories. A live issue before many national, regional and international tribunals, this topic involves important normative questions about the universality of rights and the relationship between human rights and humanitarian law. It also requires analysis of the jurisdictional provisions of individual treaties to ascertain what states have consented to and the content of those treaties to determine which rights can meaningfully be applied extraterritorially.

Seeking to examine this question from a variety of perspectives, this panel will begin with Shaheed Fatima of Blackstone Chambers, England, who will be discussing her work on the applicability of the European Convention on Human Rights (ECHR) and the UK Human Rights Act (HRA) to actions by British forces in Iraq. * As she is junior counsel in the AI Skeini case, she will lead us through the decision of the English Court of Appeal that the HRA and the ECHR applied to actions by British forces with respect to an individual in a British run prison in Iraq, but not to five other test cases where the United Kingdom lacked effective control over the area in which the incidents occurred.

After hearing from an advocate who has represented applicants against governments, we will hear from Michael Dennis, who is an attorney-advisor for the U.S. State Department. In addition to working for the U.S. government on human rights issues, Michael has published articles in leading journals arguing that the International Covenants on Civil and Political Rights and Economic and Social Rights do not apply extraterritorially. His recent AJIL article on the Wall Opinion was cited by the Israeli Supreme Court. Michael will be discussing the text and negotiating history of the ICCPR to make the case against the extraterritorial application of that treaty.

One of the recurring themes on this panel is whether international human rights and humanitarian law are or should be co-applied, or whether humanitarian law ousts human rights law completely or to some extent. Orna Ben-Naftali, who is a Professor of International Law at the College of Management, Academic Studies, Israel, will be addressing this topic with a particular focus on occupied territories. In her recent work, she has argued for the co-application of international human rights and humanitarian law (as the lex specialis) in occupied territories, to the extent that the occupying power exercises potential or actual effective control over the occupied territory. Orna nonetheless recognizes that there are some difficulties with this approach and seeks to outline them as an agenda for future work.

Finally, we will hear from Robert McCorquodale who is a Professor and the Head of School at the University of Nottingham, and who is a leading writer on corporate liability under international law. Instead of looking directly at the issue of states acting outside their territorial boundary, Robert will focus on whether a state can be held responsible for human rights violations by corporations acting outside that state's territory. As many human rights treaties require states to not only respect but also ensure human rights, this is an important area of state responsibility often over-looked in the issue of the extraterritorial application of human rights.

([dagger]) Associate, Debevoise & Plimpton LLP.

* Unfortunately, given her case constraints, Shaheed was unable to contribute written remarks to the Proceedings.

APPLICATION OF HUMAN RIGHTS TREATIES EXTRATERRITORIALLY DURING TIMES OF ARMED CONFLICT AND MILITARY OCCUPATION

This morning I will focus on the question: Are obligations assumed by states under international human rights treaties...

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