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Home EJIL Analysis Towards Universality: Activities Impacting the Enjoyment of the Right to Life and the Extraterritorial Application of the ICCPR

Towards Universality: Activities Impacting the Enjoyment of the Right to Life and the Extraterritorial Application of the ICCPR

Published on November 27, 2018        Author: 
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On October 31st, the Human Rights Committee (HRC) adopted General Comment no 36 on the right to life (GC36, available here) to the International Covenant on Civil and Political Rights (ICCPR/the Covenant). The Comment includes a number of interesting elements including, the introduction of the right to life as the ‘supreme’ right, and the relationship between the right to life and the environment. This post examines the endorsement in GC36 of the notion of ‘impact’ as constitutive of jurisdiction for the purpose of the extraterritorial application of the Covenant.

Impact as Exercise of Jurisdiction

In para. 63 of GC36, the Human Rights Committee adopts the ‘impact’-approach to the interpretation of Art. 6 in conjunction with Art. 2 (1) of the Covenant:

In light of article 2, paragraph 1, of the Covenant, a State party has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control.  This includes persons located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner. […]

Readers of this blog will be familiar with the debates on the extraterritorial application of human rights treaties. To quickly recap, the application of human rights treaties is premised on the exercise of jurisdiction by the State [See e.g. ECHR Art. 1, ICCPR Art. 2]. Jurisdiction is primarily, but not necessarily, territorial [See e.g. the Wall advisory opinion § 109 on the ICCPR and Al-Skeini § 131 on the ECHR]. The application of human rights treaties outside a State’s own territory has thus far been based on two models; effective control (the spatial model) or power over an individual (the personal model) [See General Comment no 31 (GC31) § 10 in respect of the ICCPR. For a general overview, see Marko Milanovic, The Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (OUP 2011)]. Over the years, these approaches have been interpreted and applied expansively, albeit at times inconsistently, by different human rights bodies. [For the development under the ICCPR, see Karen da Costa, The extraterritorial application of selected human rights treaties (Brill 2013), Chapter 1]

Although it is now clear that a State’s activities abroad can fall within the scope of its human rights treaty obligations, many situations remain unsettled, such as the responsibility for aid or assistance in the commission of human rights violations and for mere kinetic effects of State activities. In its reply to the current formulation in GC36, the Dutch government for example held that “the mere fact that a bullet hits an individual, missile, or rocket fired by armed forces does not bring that individual within the power or effective control of the State party”. In his seminal book on the topic, Marko Milanovic presented a third model based on the distinction between the duty to respect and the duty to secure human rights that solves these borderline cases. In sort, because duty to ‘secure’ or ‘ensure’ alludes to the full scope of obligations – negative and positive – there is no reason that the State would not be responsible for breaches of the negative duty to respect human rights even where it does not exercise jurisdiction in the spatial or personal sense described above. Rather, the State should respect human rights irrespective of the traditional notion of jurisdiction to the extent that it can. [Milanovic (2011), 209ff] For all practical purposes, the Committee has in § 63 embraced the third model on the extraterritorial application of the ICCPR, albeit without creating an exception to the requirement of jurisdiction in Art. 2(1). ‘Impact’ as a ground for the application of the ICCPR is considered a form of exercise of power by the State, one of two forms of exercise of extraterritorial jurisdiction. It replaces the formulation in GC31 § 10 of “power over an individual” (the personal model).

State Reception

How did States react to the notion of impact as constitutive of jurisdiction?  The formulation was present in the circulated draft (§ 66) adopted on first reading. The Committee received written comments by 23 States out of 172 State parties total, 16 of which raised neither objections nor support for the formulation (Malta and Finland however, expressed general support for GC36) [see the list the here].  

Seven States raised objections to the formulation. Although these numbers do not nearly lead one to the conclusion that the objections represent the majority view, they should be taken seriously. The more easily dismissible objections were voiced by Canada and the U.S. who advocated for the return to a conjunctive understanding of “territory and jurisdiction” in Art. 2(1), barring any extraterritorial application of the Covenant. The rest argued that the notion of ‘impact’ was too broad (France, Germany, Austria, Norway and the Netherlands), going “far beyond the established interpretation of the extraterritorial application of the Covenant” (Austria. Similar arguments were presented by Norway and the Netherlands). Instead, some expressed preference for the formulation adopted in GC31 (the Netherlands) or to the formulation of the spatial model under the ECHR (Austria and France).

Consistency with Previous Practice

The objections detailed in the previous section lead to the question of whether ‘impact’-approach is consistent with the previous practice of the Committee. To some extent the objections have merit: it is entirely true that the Committee’s reference to a concluding observation against the U.S. alone hardly qualifies as ‘practice’. Furthermore, the notion of ‘impact’ has been absent in the earlier general statements on the interpretation of Art. 2(1) by the Committee.

However, does this necessarily mean that § 63 is inconsistent with the interpretation already established by the Committee? Arguably not. First, the Committee has long separated the notion of territory and jurisdiction in its interpretation of Art. 2(1) [See GC31 § 10]. Second, the principle of the universal application of the ICCPR dates back at least as far as 1981 where the HRC in the Lopez Burgos v Uruguay case held that ‘Article 2 (1) […] does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquiescence of the Government of that State or in opposition to it.’ [section 12.3]. One such way in which States could be held accountable was when they exercised power over an individual [see GC31 § 10]. Third, the notion of ‘power’ over an individual is arguably broader than the notion of ‘state agent authority or control’ under the practice of the ECHR, and it has been an open question which activities that could qualify as exercise of power. As a point of comparison, the ECtHR did not need to revise its general interpretation of Art. 1 ECHR in Jaloud to stretch the personal model of jurisdiction in its application of the Convention to cars passing through checkpoints. One could similarly ask whether existing formulations by the HRC really entailed any inherent limitation in respect of acts that ‘impact’ the right to life [For an answer in the negative in respect of the ECHR, see Milanovic (2011), 207 – 208]. Third, and related, the question of dividing and tailoring rights depending on the degree of control exercised by the State outside its own territory has arguably also been confirmed in the practice of the Committee in the affirmation of different models of extraterritorial jurisdiction [Compare in the case law of the ECtHR the rigidity of Bankovic § 75 under the spatial model with the more flexible Al-Skeini § 137 under the personal model]. The fact that different models of jurisdiction are presented in § 63 together with the ‘impact’-model suggests that this will continue to be the case.

Conclusion
In sum, § 63 to GC36 reaffirms the principle of the universal applicability of the Covenant. This expansion is arguably not inconsistent with the established practice of the HRC. To the contrary, one could argue that the ‘impact’ model can serve to spare the Committee from the inconsistencies that have fraught the case-law of the ECtHR, and instead increase the legal security of States’ duty to comply with human rights obligations abroad [See Al-Skeini, Judge Bonnello’s Concurring Opinion §§ 5 – 7]. However, for this to be the case, the Committee will have to make significant clarifications. First, it is far from clear how the threshold criterion on ‘impact’ on the right to life is to be understood. Second, although the requirement of direct and reasonably foreseeable impact serves to limit the consequences of an unfettered ‘impact’ assessment based on the requirements causality and knowledge, these conditions remain extremely vague.

At this stage however, it is safe to say that § 63 in GC36 represents an important development that is likely to shape future practice under Art. 6 of the ICCPR. Some of the debates that may take place in the course of the work of the Committee are foreshadowed in the General Comment itself: First, it permits the Committee to address certain issues with greater ease, such as targeted killings, which formally speaking had been problematic to argue falls within the jurisdiction of the targeting State. Second, Para. 67 of the seems to envisage the application of Art. 6 to the conduct of hostilities under International Humanitarian Law (IHL), which could indicate that the Committee is prepared to engage actively with questions of compliance with IHL in order to determine arbitrary deprivations of life. More generally, this will also raise questions as to the co-applicability of the duty to investigate alleged arbitrary deprivations of life and an individual right to effective remedies of victims in armed conflict. Third, it opens the door for more detailed examination of responsibility for complicity in human rights violations abroad [see GC36 § 63].

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One Response

  1. Kristen S.

    Dear Mr Daniel Møgster, thank you for your clear illustration for the extraterritorial application of ICCPR. I have a question about the cases you mentioned. In Bankovic case, Al-Skeini case and the 2017 IACHR’s Advisory Opinion, I noticed that the “jurisdiction” may extend to acts of States which are produce effects “only in exceptional cases / circumstances.” So how to define the prerequisite “in exceptional cases / circumstances”? Will it obstruct the establishment of extraterritorial application of ICCPR or impose a high threshold?

    Hope to hear from you soon. Thank you again!

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