Foreign Surveillance and Human Rights, Part 2: Interpreting the ICCPR

This post is part of a series: Intro, Part 1, Part 3, Part 4, Part 5.

Comparing the ICCPR and the ECHR

The scope of many human rights treaties is at least partly determined by how we interpret their jurisdiction clauses, and here we can observe some important differences. I will limit myself in this analysis in looking solely at the ICCPR and the ECHR, the former because most states engaging in overseas surveillance will be parties to it (like the US), the latter because of the relative strength and influence of its enforcement mechanisms and the European Court of Human Rights’ extensive (and conflicting) jurisprudence on questions of territorial application.

Article 2(1) ICCPR provides that ‘[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,’ whereas Article 1 ECHR stipulates that the ‘High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ The main difference between the two provisions is the ICCPR’s reference to territory, but there is also the ICCPR’s distinction between the obligations to respect and to ensure, while the ECHR speaks of the obligation to respect in the heading of Article 1, but only of the obligation to secure in the actual text. (I will return to the distinction between positive and negative obligations later in this series). The magic word in both texts is (state) ‘jurisdiction’, but the question arises whether the ICCPR’s seemingly conjunctive reference to territory admits of any extraterritorial application, and if it does whether the interpretations of the ICCPR and the ECHR should align or not.

The US Position on the ICCPR

Ashley Deeks pointed out in an excellent post at Lawfare that ‘the United States has long argued that the ICCPR does not apply extra-territorially, because the U.S. government reads the scope requirement as limiting the treaty to activity within U.S. territory.’ This is broadly correct, but I want to take issue with the word ‘long,’ which overstates matters somewhat. The US views on the extraterritorial application of the ICCPR have in fact not been as clear, long-standing or principled as is sometimes said.

Much time passed between the drafting of the ICCPR, in which the US had actively participated and most of which was done in 1947-1954, the decision to split the then single Covenant into two, further deliberations and the adoption of the text of the ICCPR in 1966, and the US ratification of the ICCPR in 1992. During the drafting stage it was the US who proposed to modify the original language of what was to become Article 2(1) – ‘within its jurisdiction,’ the formula that was taken up by the drafters of the ECHR – so that it became ‘within its territory and subject to its jurisdiction.’ Much was later made of this drafting change by the George W. Bush administration, as well as Michael Dennis writing in the AJIL.

But a deeper look at the travaux shows the lack of any conceptual coherence among the drafters. This was but one of many issues they were considering, and while some states were concerned about the application of the Covenant to specific problems (notably that the Covenant should not require them to protect their nationals abroad, or legislate for the people of occupied Germany), the preparatory work is remarkably unhelpful when it comes to first principles regarding the interpretation of Article 2(1). The travaux certainly do not express a clear sentiment by the drafters that the Covenant should never apply extraterritorially. (This was indeed the ICJ’s conclusion upon looking at the travaux in the Wall case, and is also the conclusion of detailed examinations e.g. by Sarah Cleveland, Nigel Rodley, Michal Gondek, and Karen da Costa).

After the adoption of the text of the ICCPR came a long period of silence during which the issue of the ICCPR’s extraterritorial application was simply not on the radar. I have myself not looked in detail at the process of the ICCPR’s ratification in the US in 1992, but unless I am mistaken the issue was not examined during the Senate’s deliberations on the matter – the Senate certainly made no declarations or understandings in that regard. Nor was the issue raised in the US initial report to the Human Rights Committee (CCPR/C/81/Add.4, 24 August 1994), even though the Committee’s first cases on extraterritorial application, such as Lopez-Burgos v. Uruguay, predated both the report and the US ratification.

As far as I can tell, the first time the US government clearly articulated the position that the ICCPR cannot apply extraterritorially tout court was when its first report was discussed before the Committee in March 1995 – CCPR/C/SR.1405, 24 Apr 1995, para. 20:

Mr. Klein had asked whether the United States took the view that the Covenant did not apply to government actions outside the United States. The Covenant was not regarded as having extraterritorial application. In general, where the scope of application of a treaty was not specified, it was presumed to apply only within a party’s territory. Article 2 of the Covenant expressly stated that each State party undertook to respect and ensure the rights recognized “to all individuals within its territory and subject to its jurisdiction”. That dual requirement restricted the scope of the Covenant to persons under United States jurisdiction and within United States territory. During the negotiating history, the words “within its territory” had been debated and were added by vote, with the clear understanding that such wording would limit the obligations to within a Party’s territory.

Note how the US representative made three arguments against the extraterritorial application of the ICCPR: (1) the existence of a default presumption against extraterritorial application; (2) the ordinary meaning of ‘within its territory’ coupled with a conjunctive ‘and’; (3) the ‘clear understanding’ to that effect from the preparatory work. Of these three arguments only (2) has real merit, and I will come to it in a moment. As I have already explained with regard to (3), there most certainly was no clear understanding among the drafters regarding the ICCPR’s extraterritorial application – indeed there was very little understanding of any kind. As for (1), it at least is manifestly wrong. Presumptions against the extraterritorial applications of statutes are creatures of domestic law; in the law of treaties the default rule in Article 29 VCLT is that a treaty applies to the state’s entire territory, rather than merely parts thereof, but that default rule has absolutely nothing to say on extraterritorial application (for an extended discussion see here).

In short, the 1995 US statement before the Human Rights Committee was not the reiteration of some long-standing position, but was made then and there, within the then-current political context, particularly the 1994-1995 intervention in Haiti. (Indeed, it was precisely with regard to Haiti that Ted Meron wrote an influential 1995 piece in the AJIL on the extraterritoriality of human rights treaties.) The Clinton administration’s position was inevitably informed by the possible difficulties the ICCPR would pose in its present and future foreign interventions, as was its similar position against the extraterritorial application of the Refugee Convention in the 1993 Sale case before the US Supreme Court, again with regard to the crisis in Haiti.

Faced with the ‘global war on terror,’ the Bush administration was happy to follow the Clinton administration’s lead. Its consolidated second and third periodic report to the Human Rights Committee contained a somewhat more extended argument against the extraterritorial application of the Covenant, CCPR/C/USA/3, 28 November 2005, in Annex I. While dropping argument (1) above, the report again argued that the conjunctive language of Article 2(1) was clear and that the impossibility of the ICCPR’s extraterritorial application was supported by the drafting history.

As is well known, this rigid position was rejected by the Human Rights Committee in its case law and in General Comment No. 31, as well as by the ICJ in the Wall and Congo v. Uganda cases and most academic commentary. But the Bush administration did not budge. The Obama administration, on the other hand, seems to be in the process of budging. In its fourth periodic report to the Committee, CCPR/C/USA/4, 22 May 2012, at para. 505, the US did not reaffirm its previous position, but merely noted it and its rejection by the Committee and the ICJ:

The United States in its prior appearances before the Committee has articulated the position that article 2(1) would apply only to individuals who were both within the territory of a State Party and within that State Party’s jurisdiction. The United States is mindful that in General Comment 31 (2004) the Committee presented the view that “States Parties are required by article 2, paragraph 1, to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction. This 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.” The United States is also aware of the jurisprudence of the International Court of Justice (“ICJ”), which has found the ICCPR “applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory,” as well as positions taken by other States Parties.

The administration thus left the door open to the possibility of changing its previous absolutist position. Anxious to accelerate this process of budging the Committee tried to press the administration further in its list of issues, but the administration remained coy in its response from July this year – CCPR/C/USA/Q/4/Add.1, 13 September 2013, para. 2, merely referring the Committee back to the US fourth report.

In sum, we should not overstate the consistency of the US position on the ICCPR’s extraterritorial application. Nor should we for that matter portray the US position, which is today definitely in the minority, as some kind of long-standing historical understanding of the Covenant which is today unjustifiably under threat from human rights and judicial activists. The US position was contested from the moment it was actually articulated in 1995. What is true, as much as for the ECHR as for the ICCPR, is that until the 1990s few people paid any serious thought to the possibility of the extraterritorial application of human rights. This is not because the states parties shared an agreement that the treaties do not apply outside their territories, but largely because culturally the rights of others were to a significant extent beyond contemplation, especially during the Cold War, and the process of human rights acculturation took its time.

The ICCPR’s Text: Applying the Auschwitz Rule

The US position may thus well change in the future and embrace the current majority opinion – whether this will actually happen will depend on political developments on which it is hard to speculate. But what then of the text of the ICCPR and that annoying ‘and’? I should not be taken for arguing that the US reading of the text is implausible – far from it, it probably is grammatically the most natural. But there are at least two more reasonably plausible readings of the text that would open the door to extraterritorial application: reading the ‘and’ interchangeably with an ‘or,’ and reading the ‘within its territory and subject to its jurisdiction’ limitation as being applicable only to the obligation to ensure human rights, but not to the obligation to respect them.

The second reading has generally not received much attention. The first, however, was famously argued for by Tom Buergenthal in a classical 1981 article, and was subsequently adopted by the Human Rights Committee in its General Comment No. 31 (2004), para. 10, holding that states have the obligation ‘to respect and to ensure the Covenant rights to all persons who may be within their territory and to all persons subject to their jurisdiction’ (emphasis mine).

One could object to this interpretation as being purely instrumental, but such an objection would misplaced if it was based on text alone. Even in everyday usage ‘and’ can be used interchangeably with ‘or’ or to indicate both a conjunction and a disjunction – if I ask you whether you would like milk and sugar with your coffee, I am not only offering you both or none, and you will know this from the social context in which this utterance takes place, i.e. the fact that plenty of people drink only milk or only sugar in their coffee, and not just both or neither. Such ambiguities are not resolvable on the basis of grammatical interpretation alone. Similarly, in legal usage courts (and lawyers more generally) frequently read ‘and’ and ‘or’ interchangeably, depending on the context and their appraisal of the intent or purpose of the legislator which can operate at varying levels of specificity or generality.

It is precisely this kind of interpretative exercise that we need to engage in to determine the effect of the ‘and’ in Article 2(1) ICCPR. Article 31(1) VCLT indeed requires us to interpret a treaty ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.’ At the very least this means that when we have several plausible readings of a text we should prefer the one that more accords with the treaty’s object and purpose. And this is precisely where the universalist normative foundation of human rights comes in: an interpretation which values all human beings equally and is respectful of their individual dignity is inherently more preferable than one that does not.

Instead of looking at the object and purpose of the ICCPR at a general level one could of course inquire into the intentions of the parties as to the specific problem of extraterritorial application. Put aside for a moment the fact that we are actually unable to determine this with much confidence from the travaux, or the methodological dubiousness of assuming what the drafters would have wanted if they were to decide a particular problem under a text that they had adopted. I am quite happy to concede that if we could today resurrect the drafters of the ICCPR and the ECHR and ask them whether their treaties should apply to overseas espionage and mass surveillance programs of the kind run by the NSA and GCHQ, their answer would likely be no.

The argument that the representatives of the ICCPR’s states parties could not possibly have agreed to outlaw foreign surveillance through the extraterritorial application of the right to privacy is appealing only superficially. Like all kinds of presumptive intentionalist arguments it can be easily responded to. Surely these same drafters, crafting the Covenant largely in response to the horrors of the Second World War and the Holocaust, could not possibly have intended to create a human rights treaty which would not be violated by the deliberate extermination of a million Jews in Auschwitz. This would indeed the consequence of the absolutist position that the ICCPR can never apply extraterritorially, and thus not even to Nazi-occupied Poland in which the death camp was located.

In short, if one thinks that human rights treaties should be interpreted by establishing (or speculating) how its drafters intended it or expected it to apply to specific problems, then one cannot escape what I will call the Auschwitz rule of interpretation: that in case there are two plausible interpretations of the text of a human rights treaty, one should favour that interpretation under which Auschwitz would be considered a human rights violation.

Whichever way one turns it, the position that the ICCPR should never apply extraterritorially seems untenable. It is rendered even more unpersuasive by not being supported by any normative theory as to why, exactly, should human rights categorically stop at the border (or, legitimate practical difficulties aside, I am yet to see one). This is precisely why the US is finding its position increasingly harder to sustain: the ICCPR must apply extraterritorially at least in some situations – the question is when and how.

My next post will look at the several possible models of extraterritorial application. In doing so, I argue that the rules and principles governing the application of the ICCPR and the ECHR should broadly be the same, despite the textual differences in the two jurisdiction clauses.