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Extraterritoriality of Human Rights Treaties

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
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Extract

On the eve of the planned U.S. invasion of Haiti, responding to an appeal from the International Committee of the Red Cross to apply international humanitarian law, the United States stated that

[i]f it becomes necessary to use force and engage in hostilities, the United States will, upon any engagement of forces, apply all of the provisions of the Geneva Conventions and the customary international law dealing with armed conflict.

Further, the United States will accord prisoner of war treatment to any detained member of the Haitian armed forces. Any member of the U.S. armed forces who is detained by Haitian forces must be accorded prisoner of war treatment.

Type
Agora: The 1994 U.S. Action in Haiti
Information
American Journal of International Law , Volume 89 , Issue 1 , January 1995 , pp. 78 - 82
Copyright
Copyright © American Society of International Law 1995

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References

1 U.S. Permanent Mission in Geneva, Diplomatic Note to the International Committee of the Red Cross (Sept. 19, 1994.) (on file with author).

2 Common Article 2. See, e.g., Convention Relative to Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135 (Geneva Convention No. III). See also Commentary on the Geneva Conventions of 12 August 1949: Geneva Convention (III) Relative to the Treatment of Prisoners of War 22–23 (Jean de Preux ed., 1960). See generally Richard R. Baxter, The Duties of Combatants and the Conduct of Hostilities (Law of The Hague), in Unesco, International Dimensions of Humanitarian Law 93, 93–103 (1988).

3 Larry Rohter, Legal Vacuum in Haiti Is Testing U.S. Policy, N.Y. Times, Nov. 4, 1994, at A32.

4 Dec. 16, 1966, 999 UNTS 171 (entered into force for the United States Sept. 8, 1992). The fact that Haiti is also a party to the Political Covenant creates a favorable political environment for its application by U.S. forces in Haiti.

5 The U.S. declaration that the provisions of the Covenant are non-self-executing has no effect on the international obligations of the United States to respect the Covenant. For a survey of U.S. case law concerning the applicability abroad of U.S. constitutional guarantees, see Restatement (Third) of the Foreign Relations Law of the United States §721 (1987). But see United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). For a critique of Verdugo, see Andreas F. Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, Continued, 84 AJIL 444, 491–93 (1990).

6 During the discussion of the words “within its jurisdiction,” which were proposed by the United States, the view was expressed that “a State should not be relieved of its obligations under the covenant to persons who remained within its jurisdiction merely because they were not within its territory.” Marc J. Bossuyt, Guide to the “Travaux Préparatories” of the International Covenant on Civil and Political Rights 53 (1987).

7 Thomas Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogations, in The International Bill of Rights: The Covenant on Civil and Political Rights 72, 74 (Louis Henkin ed., 1981). Contra Dietrich Schindler, Human Rights and Humanitarian Law, 31 Am. U. L. Rev. 935, 939 (1982).

8 See UN Doc. HRI/GEN/1/Rev.1, at 4 (1994). For a discussion of the scope ratione loci of the Political Covenant, see Theodor Meron, Human Rights Law-Making in the United Nations 106–09 (1986).

9 UN Doc. CCPR/C/21/Rev.1/Add.5, para. 4 (1994) (emphasis added).

10 UN Doc. CCPR/C/21/Rev.1/Add.6, at 4, para. 12 (1994) (unedited text).

11 Report of the Human Rights Committee, UN GAOR, 46th Sess., Supp. No. 40, para. 652, UN Doc. A/46/40 (1991). See also id., paras. 625, 636, 640.

12 Saldías de López v. Uruguay, UN GAOR, 36th Sess., Supp. No. 40, at 176, 182, UN Doc. A/36/40 (1981).

13 Id. at 183. The European Commission of Human Rights similarly interpreted Article 1 (“The High Contracting Parties shall secure to everyone within their jurisdiction the rights ””) of the European Convention on Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 UNTS 221, with regard to the obligations of Turkey in occupied Cyprus. Cyprus v. Turkey, App. Nos. 6780/74, 6950/75, 2 Eur. Comm’n H.R. Dec. & Rep. 125, 136 (1975), summarized in Meron, supra note 8, at 107 n.73. See also Haritini Dipla, La Responsabilité de l’Etat pour violation des droits de l’homme 45–51 (1994).

14 Mojica v. Dominican Republic, UN Doc. CCPR/C/51/D/449/1991, para. 5.4 (1994). See also Kindler v. Canada, Communication No. 470/1991, Report of the Human Rights Committee, UN GAOR, 48th Sess., Supp. No. 40 (pt. II), at 138, para. 6.2, UN Doc. A/48/40 (Part II).

15 Walter Kalin, Report on the situation of human rights in Kuwait under Iraqi occupation, UN Doc. E/CN.4/1992/26, paras. 58–59. On this question, see Theodor Meron, Prisoners of War, Civilians and Diplomats in the Gulf Crisis, 85 AJIL 104, 106–07 (1991). See generally Theodor Meron, Applicability of Multilateral Conventions to Occupied Territories, 72 AJIL 542 (1978).

16 The Covenant assumes that the same state party is responsible for the executive and the judiciary.

17 The Security Council resolutions authorizing the U.S. intervention contain no guidance as to the applicable criminal law.

18 For a trenchant critique of United States v. Alvarez-Machain, 112 S.Ct. 2188 (1992), see Louis Henkin, Will the U.S. Supreme Court Fail International Law’?, ASIL Newsletter, Aug.-Sept. 1992, at 1. See also Lowenfeld, supra note 5; Andreas F. Lowenfeld, Kidnaping by Government Order: A Follow-up, 84 AJIL at 712.

19 Recent (and even the earlier European Convention on Human Rights, see supra note 13) human rights treaties avoid the tangled language of the Political Covenant and are indisputably addressed to the protection of all individuals that may fall under the jurisdiction of the state party. The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46 (Dec. 10, 1984), UN GAOR, 39th Sess., Supp. No. 51, at 197, UN Doc. A/39/51 (1985), requires a state to take certain steps to prevent acts of torture “in any territory under its jurisdiction” (Art. 2(1)). The Convention on the Rights of the Child, GA Res. 44/25 (Nov. 20, 1989), UN GAOR, 44th Sess., Supp. No. 49, at 167, UN Doc. A/44/49 (1989), requires states to respect and ensure certain rights “to each child within their jurisdiction” (Art. 2(1)). The American Convention on Human Rights, Nov. 22, 1969, OEA/Ser.K/XVI.1.1, doc.70, rev.1, corr.1 (1970), reprinted in 1 The Inter-American System, pt. II at 51 (F. V. García-Amador ed., 1983), addresses rights of all persons “subject to [the] jurisdiction [of states parties]” (Art. 1(1)).

See generally Lea Brilmayer, Justifying International Acts 29 (1989).

20 Walter Kalin argued that the International Covenant on Economic, Social and Cultural Rights was binding on Iraq in Kuwait during the occupation: “[no] provision of the Covenant limits its application to the territory of States parties. … [A] State party remains bound by the Covenant if it occupies the territory of another State and exercises there de facto State power.” Kalin, supra note 15, at 14.

21 113 S.Ct. 2549 (1993).

22 July 28, 1951, 189 UNTS 137.

23 113 S.Ct. at 2565.

24 “It is incredible,” he wrote, “that states that had agreed not to force any human being back into the hands of his/her oppressors intended to leave themselves—and each other—free to reach out beyond their territory to seize a refugee and to return him/her to the country from which he sought to escape.” Louis Henkin, Notes from the President, ASIL Newsletter, Sept.–Oct. 1993, at 1.

25 The United States will, of course, be subject to the Committee’s scrutiny of its annual reports under Article 40 and in case of complaints lodged by other state parties under Article 41, which it has accepted.