Administration Submits ICCPR Report, Punts on Extraterritorial Application

On Friday, December 30, while much of the world, human rights groups, and the press were out on holiday, the State Department without fanfare submitted the fourth U.S. periodic report required under the International Covenant on Civil and Political Rights (ICCPR) to the U.N. Human Rights Committee, the body (which is not be confused with the U.N. Human Rights Council) created by the ICCPR to monitor compliance with the treaty. The voluminous and carefully documented report is perhaps most notable for what it does NOT say: it does not say, as the Human Rights Committee and many human rights groups had urged, that the U.S. will apply the civil and political rights guaranteed by the treaty extraterritorially, i.e. to persons under U.S. control outside the United States.  The longstanding U.S. legal position, dating back to the negotiation of the treaty and reiterated by the Clinton Administration when it submitted the initial U.S. report to the Human Rights Committee in 1995, has been that the ICCPR applies only to persons inside the United States.  (Under Article 2 of the ICCPR, each State Party to the treaty agrees to ensure the rights recognized in the treaty “to all individuals within its territory and subject to its jurisdiction.”)  Some observers had expected that the Obama Administration might announce a change in the longstanding U.S. position to address concerns in the human rights community.  But the Administration did not do so, at least in this report. In 2004, in its General Comment 31 (which is not binding on parties to the treaty, despite assertions to the contrary by the Committee), the Committee stated that “States Parties are required…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.”  In its comments on the last U.S. periodic report in 2006, the Committee recommended that the United States review its approach to interpretation of the Covenant and, in particular (a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction, but outside its territory.” But notwithstanding the Committee’s recommendation, the fourth periodic report does not acknowledge the application of the Convention to persons outside the U.S.  Rather, it carefully declines (in paras 503-505) to state any position on the issue at all, acknowledging instead both the position taken by the U.S. in the first, second, and third U.S. reports as well as the views of the Committee in General Comment 31 and of other States parties.  The report states (para 510) that “The United States appreciates its ongoing dialogue with the Committee with respect to the interpretation and application of the Covenant, considers the Committee’s views in good faith, and looks forward to further discussions of these issues when it presents this report to the Committee.”  In short, the Administration has punted on the issue of extraterritoriality for now, but is leaving open the possibility that it might take a different position when the U.S. formally appears before the Committee later this year or next year. So why did the Administration punt?  First, it would require the U.S. to reinterpret the text of Article 2 of the ICCPR, and change a longstanding U.S. position that had been formally stated by both the Clinton and Bush Administrations.  A unilateral reinterpretation of the treaty could raise the ire of Senate Republicans regarding the shared understanding of the treaty between the Executive branch and the Senate at the time the ICCPR was approved by the Senate.  Second, applying the rights guaranteed by the ICCPR to persons outside the United States would mean accepting that U.S. military and intelligence operations involving persons under U.S. jurisdiction outside the U.S. must be consistent with the Covenant, including the prohibition in Article 7 against arbitrary deprivation of life and the rights set forth in Article 9 for persons who have been arrested or detained.  It is doubtful that the Department of Defense (even if it is willing to apply extraterritorially, as I believe it should, certain provisions or principles of the ICCPR as a matter of policy) would agree that the entire ICCPR should apply, as a legal matter, to U.S. military activities outside the U.S. (and that the U.N. Human Rights Committee should be permitted to review these activities), rather that these activities should be governed by the laws of armed conflict. There’s also a third reason the Administration may have decided to punt: It’s an election year.