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Jurisdiction and Power: The Intersection of Human Rights Law & The Law of Non-International Armed Conflict in an Extraterritorial Context

Published online by Cambridge University Press:  04 July 2014

John Cerone
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Abstract

The events of recent years have prompted a closer examination of the legal complexities arising from transnational armed conflicts pitting a state against a non-state organized armed group based outside the state's territory. For much of the Twentieth Century it remained unclear whether human rights law apply to a state's conduct during armed conflict or occupation. Despite continuing objections on the part of a handful of states, a consensus is evolving in favor of the view that human rights law applies in full alongside humanitarian law.

Once it is settled that human rights law does not cease to apply by reason of the inception of a state of armed conflict, it is easy to see how this body of law would apply alongside humanitarian law in an internal armed conflict. The situation becomes more complex, however, when a state is engaged in a non-international armed conflict taking place outside of that state's territory.

Unlike human rights law, the law of armed conflict was designed to apply primarily in an inter-state context. Thus, the vast majority of its provisions clearly apply to a state's extraterritorial conduct, specifically in the territory of the opposing state. But what of that branch of humanitarian law that developed to regulate non-international (i.e., non-inter-state) armed conflict? Recently, controversy arose as to whether Common Article 3 applies only to internal conflicts. The question of the extraterritorial application of Common Article 3 must be examined in light of the more general evolution in humanitarian law in favor of recognizing rights of individuals as such.

There has been a substantial degree of convergence between the law of international armed conflict and the law of non-international armed conflict. A result of this convergence has been that individuals involved in a non-international armed conflict can now benefit from many of the protections once available only in the context of inter-state conflicts.

At the same time, some have relied on this convergence to extend to non-international armed conflicts not only the prohibitions of the law of international armed conflict, but also, controversially, authorizations. In any event, notwithstanding continuing controversy over its content, there seems to be a general consensus supporting the proposition that the law of non-international armed conflict applies extraterritorially. As noted above, demonstrating the applicability of humanitarian law outside of a state's territory is facilitated by the fact that the bulk of the law of armed conflict was designed to apply in an interstate context, presupposing that states would be acting on each other's territory. That some of these rules are now deemed to apply even in an internal setting does not lessen the presumption that they will still apply extraterritorially, at least insofar as they consist of prohibitions and do not purport to impose obligations on third states.

The situation is more complex under human rights law, which was not primarily designed to apply extraterritorially. In order to ascertain whether human rights law is applicable in the context of transnational conflicts with non-state groups, it is essential to consider the extent to which human rights law is applicable in relation to individuals outside the state's territory.

Most of the jurisprudence of human rights bodies, which have greatly elaborated on the content of states' obligations under the various human rights treaties, has been developed in the context of alleged violations committed on the territory of the respective state party. Can these same standards be transposed onto the state's conduct abroad?

Thus, it would seem that there may be an identifiable trend toward recognizing varying levels of obligation. In particular, it may be that negative obligations apply whenever a state acts extraterritorially (at least with respect to intentional human rights violations, as opposed to indirect consequences), but that the degree of positive obligations will be dependent upon the type and degree of control (or power or authority) exercised by the state. Such obligations are limited by a scope of reasonableness even when applied to a state's conduct within its territory; there is no reason why application to a state's extraterritorial conduct would not similarly be bounded by a scope of reasonableness, such that the adoption of affirmative measures is only required when and to the extent that the relevant party de jure or de facto enjoys a position of control that would make the adoption of such measures reasonable. This approach would preserve the integrity of the respective treaties and would vindicate the universal nature of human rights, which is proclaimed in the preambles of all of the human rights treaties considered in this analysis. At the same time, it would not place unreasonable burdens on states parties. From its inception, the international law of armed conflict followed the projection of power. The jus in bello would apply to armed conflicts irrespective of physical location, so long as opposability as between the warring parties was satisfied. The same could be said of the law of state responsibility for injury to aliens. While the application of both bodies of law clearly extended beyond the state's jurisdictional reach, neither could penetrate into the sphere of the state's domestic jurisdiction in the narrowest sense. Human Rights law was developed to fill that gap.

But just as humanitarian law ultimately began to press inward against that external membrane of a state's domestic jurisdiction, human rights law has now begun to exert outward pressure against the inner wall of the state's jurisdiction. Indeed, these two processes—of inward penetration and outward projection—can be seen along a single continuum with a common seam. That seam is manifested in the structural evolution of the international legal system that was consolidated in the years immediately following World War II. The principal structural development of that period was the emergence of the individual human being as a subject of international law, capable of bearing international rights and duties.

This structural development corresponded to a coalescence of values around a principle conceived as transcendental and universal—human dignity. Recognition by the newly reconceived international community that the dignity of the individual human being was something entitled to legal protection led to the transformation of this principle into positive law. It is this conception of human rights as both transcendental and universal that pushes against the concept of jurisdiction—pushing simultaneously into the domestic sphere and out of it—and underscores both its artificiality and diminished existence. It is this conception, far more than the force of legal reasoning from positive law that has enabled both human rights law and humanitarian law to grasp the outer and inner reaches of the power of the state.

To the extent these rules are designed to protect individuals from abuses of state power, realization of that design entails application coextensive with the projection of that power. While the exact contours of their application may not be settled, the traditional principles of good faith and reasonableness in the circumstances provide ample guidance for shaping those contours.

Type
Research Article
Information
Israel Law Review , Volume 40 , Issue 2 , Summer 2007 , pp. 396 - 452
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2007

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Footnotes

*

Associate Professor of Law and Director of the Center for International Law & Policy at New England School of Law.

References

1 Human rights law and humanitarian law (i.e. the law of armed conflict) are separate bodies of international law with distinct modes of application. While human rights law is primarily concerned with the way a state treats those within its domain, “[h]umanitarian law aims at placing restraints on the conduct of warfare so as to diminish its effects on the victims of the hostilities.” ICTY: Prosecutor v. Kunarac, Kovac, and Vukovic, Case no. IT-96-23-T and IT-96-23/1, Trial Chamber II, Judgment, (February 22, 2001), at para. 470. Other distinctions between human rights and humanitarian law include the subjects of obligations, the institutions competent to determine violations, the period of application, the scope of beneficiaries, the locus of application, the range of rights protected, and the sources of obligations.

2 This refers to international human rights law in the strict sense (i.e. not including humanitarian law and international criminal law). The present analysis will focus on the International Covenant on Civil and Political Rights [hereinafter ICCPR], the International Covenant on Economic, Social, and Cultural Rights, and their regional counterparts. Reference will also be made to relevant customary human rights law.

3 International Covenant on Civil and Political Rights, U.N. GAOR Supp. No. 16, at 52, UN Doc. A/6316 (1966), art. 4. While states may derogate from certain human rights obligations when faced with a public emergency, strict limitations apply.

4 Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, 1996 I.C.J. 226 (July 8), at, para. 25 [hereinafter Nuclear Weapons case].

5 See Coard et al. v. the United States,, Case 10.951, Inter-Am. C.H.R., Report No. 109/99, OEA/ser, I./R./109/99 (1999), at para. 39. Given the pervasive phenomenon of cross-fertilization among international fora, particularly among human rights fora, it is not uncommon to cite jurisprudence from regional fora as precedent for universal regimes. Regional practice is also particularly useful since the regional institutions, the combined membership of which comprises a large proportion of UN member states, tend to be more active, and thus have broader bases of experience within their spheres of competence.

6 Human Rights Committee, General Comment No. 31 [80]: Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/74/CRP.4/Rev.6 (2004) [hereinafter General Comment No. 31]. Concluding Observation of the Human Rights Committee, Israel, ¶ 11, CCPR/CO/78/ISR (Aug. 21, 2003).

7 See SC Res. 1265, ¶ 4, UN Doc. S/RES/1265 (Sept. 17, 1999).

8 Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 I.C.J. 163, (July 9), at para. 106 [hereinafter Wall opinion].

9 Id. at para. 106.

10 See Coard v. the United States, supra note 5.

11 See General Comment No. 31, supra note 6, at para. 11.

12 Nuclear Weapons case, supra note 4, at para. 25.

13 Juan Carlos Abella v. Argentina, Case 11.137, Inter-Am. C.H.R., Report No. 55/97, OEA/ser. L/V/II.95 doc. 7 rev. at 271 (1997), at para. 160.

14 The present analysis focuses on the law of non-international armed conflict as set forth in Common Article 3 of the Geneva Conventions. It does not encompass the Additional Protocols to the 1949 Conventions, which have different thresholds for application.

15 Some degree of international regulation may have been entailed under the pre-UN Charter law of neutrality. In particular, where insurgent groups reached a certain critical mass, they could possibly achieve belligerent status, imposing a duty of neutrality on other states. However, this regulation itself flowed from the principle of non-intervention.

16 However, the ICTY has held that the basic rules of these Conventions have since evolved through customary law to apply to non-international conflicts as well. Prosecutor v. Tadic, Case No. IT-94-1, ICTY Appeal Decision (Oct. 2, 1995), at para. 127 [hereinafter Tadic Appeal Decision].

17 See, e.g., Hague Convention (IV) Respecting the Laws and Customs of War on Land, art. 2, Oct. 18, 1907, 36 Stat. 2277, T.S. 539 [hereinafter Hague Convention IV]. (“The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.”)

18 However, certain norms of the Hague law had by that time acquired the status of customary law, and were applicable as such.

19 Under Common Article 3, “the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to” persons “taking no active part in the hostilities,” including those placed hors de combat:

(a) Violence to life and person in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Geneva Convention relative to the Treatment of Prisoners of War art. 3, Aug. 12, 949, 6 U.S.T. 3316, 75 U.N.T.S. 135.

20 Tadic Appeal Decision, supra note 16, at para. 70.

21 Of course more than one state could be battling the same non-state group. However, this would not alter the nature of the conflict as long as the states were not in conflict with each other.

22 The term “enemy” combatant simply means that the person is a combatant who is fighting on behalf of the enemy. It does not denote privileged status or lack thereof. The legally meaningful distinction is between “privileged” and “unprivileged” (sometimes described as “lawful” and “unlawful”) combatants, the test for which is set forth in Article 4 of the Third Geneva Convention.

23 While the International Criminal Tribunal for the former Yugoslavia has held that much of the law of international armed conflict, including the basic rules of the Hague Conventions, has evolved through customary law to apply to non-international armed conflicts as well, it is unlikely that the combatant's privilege would have similarly evolved given the direct and substantial threat it would pose to state sovereignty.

24 Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27), at para. 218 (citing Corfu Channel, Merits, ICJ Reports 1949, at 22). Although the Court ultimately refrained from characterizing the conflict in which the US was engaged in Nicaragua, it held that Common Article 3 would apply in any event as a minimum yardstick for all armed conflicts. It thus clearly took the position that Common Article 3 applies beyond a state's territory.

25 Tadic Appeal Decision, supra note 16 at para. 102.

26 Id.

27 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).

28 The US position seems to be somewhat broader. In a letter dated 31 January 2006, addressed to the Office of the High Commissioner for Human Rights, the Permanent Representative of the United States of America to the United Nations and Other International Organizations in Geneva wrote, “The United States has made clear its position that it is engaged in a continuing armed conflict against Al Qaida, that the law of war applies to the conduct of that war and related detention operations…” Indeed, the US justifies its continued detention of the Guantanamo detainees by reference to the law of armed conflict. In replying to inquiries by UN and related human rights bodies about the legal basis for detaining the individuals at Guantanamo, the US has consistently asserted that “[t]he law of war allows the United States—and any other countries engaged in combat—to hold enemy combatants without charges or access to counsel for the duration of hostilities.” Response of the United States of America dated October 21, 2005 to Inquiry of the UNCHR Special Rapporteurs dated August 8, 2005 Pertaining to Detainees at Guantanamo Bay; see also Annex to Second Periodic Report of the United States to the Committee Against Torture, filed on May 6, 2005.

29 It should be noted however that there has been within the US military a long standing policy giving a very broad read to Common Article 3, holding it applicable in a wide range of military operations.

30 The US also took the position that the Geneva Conventions, as legally binding agreements between states, could not apply to the conflict with Al Qaeda because the latter was not a party to the Conventions, reflecting its view of the inapplicability of the Conventions to transnational armed conflicts with non-state groups.

31 Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).

32 It reserved judgment on whether other provisions of the Conventions were applicable. By taking this position, the Court essentially also adopted the position taken by the International Court of Justice that Common Article 3 is a “minimum yardstick” for all armed conflicts, international or non-international. See Nicaragua v. USA, supra note 24, at para. 218.

33 Hamdan v. Rumsfeld, supra note 27, at the opinion of Judge Stevens, para. 4.

34 July 7, 2006 memo entitled, “Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense,” the Office of the US Secretary of Defense. It should be noted that although the holding of the Supreme Court in Hamdan was limited to the facts of that particular case (i.e. an individual detained in the course of the US invasion of Afghanistan), the Memorandum indicates a broader reading of the Court's holding—that Common Article 3 applies to the conflict with Al Qaeda.

35 Hague Convention IV, supra note 17, Annex, Article 4.

36 Id. at Article 3.

37 See, e.g., Geneva Convention (IV), Article 4, supra note 19.

38 Rome Statute of the International Criminal Court, 1 July 2002, 2187 U.N.T.S. 3. See Article 8.

39 While the US Government has frequently invoked the “law of war” to justify its conduct in recent years, the meaning of that phrase within the US legal system is unclear. First, it may refer to the international law of armed conflict as such. Second, it could refer to this same body of international law as it is understood within the US legal system (i.e. as interpreted by those empowered under US law to do so). Or, third, it could refer to the second category as supplemented or modified by other related US law, including common law, legislation, and other legal instruments.

40 Certain rules of international law would, of course, operate to restrain that use of force.

41 Some have argued that in the post-9/11 world, the right of self-defense could authorize incursions into a state's territory for the purpose of defending against an armed attack by a non-state group operating within that other state's territory. Even if this argument could be accepted as a basis for absolving the state of responsibility for an otherwise internationally wrongful act, this issue would be legally distinct from the question of whether the conduct of the state's forces was privileged as against application of the territorial state's domestic law. While the territorial state could of course grant such a privilege, it is highly unlikely that this would be required by international law.

42 Such authority could of course be conferred by the territorial state, subject to certain limitations. However, the Bush administration seems to claim that it would have such authority even in the absence of the territorial state's consent.

43 This included violations perpetrated against foreign nationals abroad. See Whiteman, M., Damages in International Law (1937)Google Scholar.

44 ICCPR, supra note 3, at Article 2. While the preambles of the ICCPR and ICESR both speak of duties of individuals, no normative content for this language has been determined. The idea of duties under human rights law is generally employed in the context of permissible restrictions on rights made through, e.g., claw-back clauses. See Article 19(3), ICCPR. Finally, although the African Charter on Human and Peoples Rights (ACHPR) sets forth duties in its operative text, these provisions have never been used by the African Commission to find individuals responsible for breaches of the Charter. Indeed, there are no procedures for alleging a breach of these duties. ACHPR, Adopted on June 27, 1981, OAU Doc. CAB/LEG/67/3 rev.5, reproduced in 21 I.LM 58 and came into force on October 21, 1986.

45 Such conduct may consist of an action or omission. See cf. ILC Articles on Responsibility of States for Internationally Wrongful Acts, GA Res. 86/83, Annex, UN Doc. A/RES/86/83 (Dec. 12, 2001) at art. 2. The rules of attribution set forth in the Articles are declaratory of existing customary international law.

46 (Emphasis added J.C.) Customary law may entail a more limited level of obligation. It is unclear, for example, whether customary law requires states to “ensure” rights as that term has been interpreted by human rights mechanisms. For example, the US Restatement provides that a

state violates international law when, as a matter of policy, it practices, encourages, or condones any of the following: 1. Genocide, 2. Slavery or slave trade, 3. Murder or causing the disappearance of individuals, 4. Torture or other cruel, inhumane, or degrading treatment or punishment, 5. Prolonged arbitrary detention, 6. Systematic racial discrimination, or 7. A consistent pattern of gross violations of internationally recognized human rights.

Restatement (Third) Of The Foreign Relations Law Of The Us: Protection Of Persons § 702 (1987). By limiting this obligation to situations when the state, “as a matter of policy,… practices, encourages, or condones” the violations, this passage may be read to exclude an obligation to take affirmative steps to prevent or respond to violations by non-State actors, an obligation which clearly obtains under the major human rights treaties.

47 See, e.g., General Comment No. 31, supra note 6. See also Human Rights Committee General Comments 6, 10, 16, 17, 18, 20, 21, 27, 28, and 31. Human Rights Committee General Comments are available at http://www.ohchr.org/english/bodies/hrc/comments.htm (last visited August 12, 2007).

48 Note that the Committee here risks conflating the distinction just drawn. The Committee would have been better advised to characterize such conduct as a failure to ensure rights as opposed to a violation of rights.

49 General Comment 31, supra note 6, at para. 8.

50 See American Convention on Human Rights American Convention on Human Rights, art. 1(1), July 18, 1978, O.A.S.T. S. No. 36, 1144 U.N.T.S. 123 [hereinafter ACHR]. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 1, Sept. 3, 1953, 213 U.N.T.S. 222 [hereinafter ECHR]. Article 1 of the European Convention requires the High Contracting Parties to “secure” the rights contained in the Convention. The European Court has interpreted article one to entail a scope of obligation similar to that encompassed by the phrase “to respect and to ensure” as interpreted by the Human Rights Committee. The African Commission on Human and Peoples Rights has gone farther, interpreting article 1 of the African Charter, which obliges states to “recognize” rights and to “adopt… measures to give effect to them,” to entail the obligations to respect, protect, promote, and fulfil the rights contained in the Charter. See Decision Regarding Communication 155/96 (Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria). Case No. ACHPR/COMM/A044/1, printed in Fifteenth Annual Activity Report of the African commission on Human and People's Rights 2001 available at http://www.achpr.org/english/activity_reports/activity15_en.pdf.

51 Id. Velásquez-Rodriguez, Case, Inter-AmCt.H.R.(Ser.C)No.4(1988);Applic.15599/94, Av.U.K.,report of 18 Sep. 1997; Eur. Ct. H.R.: Kiliç v. Turkey, Appl. No. 22492/93 (given March 28, 2000), available at http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=22492/93&sessionid=1757379&skin=hudoc-en (last visited August 13, 2007); Nelson E. Jiménez v. Colombia, Inter-Am. C.H.R., Report No. 4/97, OEA/Ser.L/V/II.95 Doc. 7 rev. at 93 (1997), at para. 7.2, 9. As stated by the Velásquez-Rodriguez Court, “An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.” Velásquez-Rodriguez case, at para. 172. The “due diligence” standard “has been generally accepted as a measure of evaluating a State's responsibility for violation of human rights by private actors.” Preliminary report submitted by the Special Rapporteur on violence against women, its causes and consequences, Radhika Coomaraswamy, ¶ 103, UN Doc. E/CN.4/1995/42, (citing Moore, Int. Arb. 495 (1872)). Application of the “due diligence” standard can be seen in the reports of UN special rapporteurs, UN special representatives, and the Secretary-General; comments, views, and concluding observations of human rights treaty bodies; reports on expert group meetings; resolutions of the Commission on Human Rights and the Economic and Social Council; Declarations by the General Assembly, and the writings of publicists. See Cerone, John, The Human Rights Framework Applicable to Trafficking in Persons and its Incorporation into UNMIK Regulation 2001/4, 7 Int'l Peacekeeping Google Scholar.

52 By use of the terms “human rights violative conduct” or “human right violation,” I do not refer to conduct that necessarily constitutes a violation of human rights law. I am using these terms to refer to conduct that would constitute an impermissible interference with one or more human rights if such conduct were attributed to the state. Thus, a human rights violation committed by a non-state actor whose conduct is not otherwise attributable to the state would not necessarily constitute a violation of human rights law.

53 In general, as states are the typical subjects of obligations under human rights law, states are referred to throughout the analysis. However, in most contexts, intergovernmental organizations may also be included to the extent that they may be deemed subjects of obligations under human rights law. Thus, throughout this analysis “states” is used as short-hand for “subjects of obligations under human rights law.”

54 Use of the term beneficiaries is not intended to imply that individual human beings are not rights-holders under human rights law.

55 Article 2(1) ICCPR, supra note 3; Article 1 ECHR, supra note 50; Article 1 ACHR, supra note 50. While Article 2 of the ICCPR refers to all individuals within a State's territory and subject to its jurisdiction, the Human Rights Committee has interpreted these to be independent grounds for application of the Covenant. See, e.g., Burgos/Delia Saldias de Lopez v. Uruguay, Communication No. 52/1979 (29 July 1981), UN Doc. CCPR/C/OP/1, at 88 (1984).

56 See, e.g., Concluding Observations of the Human Rights Committee: Israel. ¶ 11, UN Doc. CCPR/CO/78/ISR, (Aug. 21, 2003); Human Rights Committee, Comments on United States of America, ¶ 19, UN Doc. CCPR/C/79/Add 50 (1995); Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Iran (Islamic Republic of Iran), ¶ 63, UN Doc. CCPR/C/SR. 1253, (July 30, 1993).

57 Burgos/Lopez v. Uruguay, supra note 55, at para. 12.3. See also Cerone, John, Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo, 12 Eur. J. Int'l L. 469 (June 2001)CrossRefGoogle Scholar. In Burgos/Lopez v. Uruguay, the Committee held that Uruguay violated its obligations under the Covenant when its security forces abducted and tortured a Uruguayan citizen then living in Argentina. Following the command of Article 5(1) that “[n]othing in the present Covenant may be interpreted as implying … any right to engage in any activity … aimed at the destruction of any of the rights and freedoms recognized herein,” the Committee reasoned that “it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”

58 General Comment No. 31, supra note 6, at para. 10.

59 Id.

60 Observations on Israel, supra note 56.

61 Wall opinion, supra note 8, at para. 111.

62 Id.

63 The scope of conduct that affects the enjoyment of rights would seem to be broader than the category of acts done in the exercise of a state's jurisdiction having such effects.

64 Wall opinion, supra note 8, at para 109.

65 It should be noted, however, that the International Covenant on Economic, Social and Cultural Rights (1976), 993 U.N.T.S. 3 [hereinafter ICESCR] imposes an obligation upon states parties to take steps, “individually and through international assistance and co-operation,” toward the progressive realization of the rights contained in the Covenant. To the extent this implies an obligation on states parties to work jointly toward realization of the Covenant rights for all people (or at least all those individuals within States Parties to the Covenant), the ICESCR may incorporate an element of extraterritoriality.

66 The Court cites with approval the finding of the CESCR that the “State party's obligations under the Covenant apply to all territories and populations under its effective control.” While this may be interpreted to apply to effective control over either territories or populations, it is difficult to conceive of effective control of a population, as opposed to certain individuals, without territorial control.

67 Id. at para. 113.

68 Given the similarity between Article 2 of the CROC and Article 2 of the ICCPR, it may be surmised that the Court applied the same standard to both. It should be noted, however, that the CROC contains economic and social rights as well as civil and political rights. See infra. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

69 Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 116 (Dec. 19), at para. 119 [hereinafter DRC v. Uganda].

70 Id. at para. 166.

71 Id. at para. 178.

72 Id.

73 Id. at para. 205.

74 Id. at 211.

75 Id.

76 Id. at 216.

77 Id. at 217.

78 Id. at 220.

79 This of course begs the question whether it would matter if Uganda was not a party to the relevant human rights treaties. If “laws in force in the country” includes human rights treaty obligations of the occupied state, then it would seem that it would not matter if the occupying Power was itself a party to the those treaties as long as the occupier was bound by the rule contained in Article 43 (which the Court found to be binding on the Parties as customary law). In such a case, the occupier would be bound to observe those human rights obligations only within the occupied territory. One could perhaps argue that this interpretation would be limited to monist countries, where there would be a closer relationship between treaties binding upon and “laws in force in” the state. However, this would seem an inappropriate distinction to make as a matter of international law (i.e. to find that the content of the state's obligation turned upon the relationship between that state's municipal law and its international obligations).

80 This would not likely apply to suppression treaties such as the Convention Against Torture, 10 Dec. 1984, 1465 U.N.T.S. 85 [hereinafter CAT] to the extent such treaties could fall within the category of “international human rights instruments,” due to the different nature and mode of operation of such treaties. The scope limitation in CAT serves a different function and different parts of that treaty are subject to different scope limitations.

81 Id. at para. 216.

82 The Court did not include the ICESCR in the list of applicable treaties, despite the fact that both the DRC and Uganda are parties. The DRC did not expressly allege violations of the ICESCR by Uganda. See Application of the DRC, available at http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=51&case=116&code=co&p3=0 (last visited July 20, 2007).

83 The ACHPR does not contain language limiting the scope of application of the Charter to the territory or jurisdiction of states parties. Article 1 of the ACHPR simply states that “parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them.” See supra note 50.

84 Although the present analysis at times refers to “extraterritorial conduct,” the focus of the analysis is on a state's conduct in relation to individuals outside the state's territory. It may be that a state's conduct occurring on its own territory is alleged to infringe the rights of those situated outside of that territory. See infra.

85 See, e.g., Coard et al. v. the United States supra note 5; Alejandre v. Cuba, Case 11.589, Inter-Am. C.H.R., Report No. 86/99, OEA/Ser.L/V/II.106 Doc. 3 rev. en 586 (1999); Detainees in Guantanamo Bay, Cuba; Request for Precautionary Measures, Inter-Am. C.H.R. (March 13, 2002).

86 Alejandre v. Cuba, supra note 85.

87 Id. at para. 8

88 It may be worth noting that the Commission used only the term “authority” in this context, and did not expressly find the victims to be under the “control” of Cuba. This may be interpreted to permit extraterritorial application in situations where individuals are subject to a state's authority, but are not necessarily within its control. Further, in the immediately preceding sentence, when restating the standard for extraterritorial application, the Commission stated, “The fact that the events took place outside Cuban jurisdiction does not limit the Commission's competence ratione loci, because, as previously stated, when agents of a state, whether military or civilian, exercise power and authority over persons outside national territory, the state's obligation to respect human rights continues…” (emphasis added J.C.). Again, the Commission makes no mention of control. This leaves open the question of what constitutes placing individuals “under their authority.” It seems in this case that the agents of the Cuban State placed the victims under their authority by intentionally shooting down their plane. In other words, the human rights violative act itself constituted the relationship necessary to establish that the victims were within Cuban “jurisdiction” for the purposes of applying Cuba's human rights obligations. Following this line of reasoning, any intentional infringement by a state of the rights of individuals anywhere would be sufficient to bring those individuals within the jurisdiction of that state for the purpose of applying that its human rights obligations. As noted below, the European Court has considered such a conclusion to render “superfluous and devoid of any purpose” the requirement that individuals be “within the jurisdiction” of States parties. The flaw in the Court's reasoning is its failure to distinguish between negative and positive obligations. See infra.

89 Id. at para. 25.

90 However, the Inter-American Commission on Human Rights recently declined to communicate a petition alleging that conduct of US forces in Iraq violated Inter-American human rights law. The Commission did not provide reasons for rejecting the position, but it may have been due to the fact that the alleged violations occurred outside of the region. See Cerone, John, The Application of Regional Human Rights Law Beyond Regional Frontiers: The Inter-American Commission on Human Rights and US Activities in Iraq, ASIL Insight, (Oct. 2005), available at http://www.asil.org/insights/2005/10/insights051025.html Google Scholar (last visited Aug. 12, 2007). The European Court has also grappled with the issue of regionality. See Cerone, John, Out of Bounds? Considering the Reach of International Human Rights Law, Working Paper No. 5, at 19 (2006), New York Google Scholar University School of Law Center for Human Rights and Global Justice [hereinafter Out of Bounds].

91 Cyprus v. Turkey, 2001–IV Eur. Ct. H.R. 1 (GC).

92 Banković v. Belgium, 2001–XII Eur. Ct. H.R. 333 (GC). As noted below, the jurisprudence of the European Court is presently in flux with regard to this issue. Recent cases seem to establish a lower standard.

93 W.M. v. Denmark, App. No. 17392/90, 73 Eur. H. R. Rep. 193, (1992).

94 Id. at para. 1.

93 See, e.g., Drozd and Janousek v. France and Spain, 240 Eur. Ct. H.R. (ser. A) at 1 (1992).

96 Loizidou v. Turkey 310 Eur. Ct. H.R. (ser. A)(1995)(Preliminary Objections)[hereinafter Loizidou (Preliminary Objections)].

97 Id.

98 Cyprus v. Turkey, supra note 91.

99 Id. at para. 77.

100 Id.

101 In adopting the effective overall control test and finding that it was therefore not necessary to determine whether Turkey actually exercised detailed control over the policies and actions of the authorities of the Turkish Republic of Northern Cyprus (TRNC), the ECHR seemed to adopt a lower standard for attribution than that employed by the ICJ in the Nicaragua case and set forth in Article 8 of the Articles on State Responsibility. Nicar. v. U.S., supra note 24. This was expressly recognized by the ICTY Appeals Chamber in Tadic, in which it departed from the rule formulated by the ICJ for attribution of the conduct of organized, hierarchical groups. While the ICJ had held that the proper standard for attribution was “effective control” over the group, including direction and participation in the particular act to be attributed, id. para. 115, the ICTY found “overall control” to be sufficient and has not required direction or participation by the state in the specific conduct, Tadic Appeal Decision, supra note 16, at para. 120. In finding further that the state could be held responsible even for acts contrary to specific instructions, the ICTY Appeals Chamber noted that, generally speaking, “the whole body of international law on State responsibility is based on a realistic concept of accountability, which disregards legal formalities and aims at ensuring that States entrusting some functions to individuals or groups of individuals must answer for their actions, even when they act contrary to their directives.” Id. at para. 121. The Appeals Chamber also made clear that it was applying its interpretation of the rules of attribution under the Law of State Responsibility and was thus not relying on a lex specialis theory for its departure from the Nicaragua judgment. Id. at para. 115, 122.

102 Banković v. Belgium, supra note 92.

103 Id. at para. 71. The Court here seems to refer here to two standards. The first—effective control of territory—seems to be a reiteration of the rule expressed in the northern Cyprus cases. The second seems intended to encompass a standard implicit in Drozd v. France, (supra note 95). Had the conduct of the judges in that case been attributable to France or Spain, it is likely that the Court would have found the Convention to apply. Note however, that the Court in that case simply stated that the “responsibility [of Contracting States] can be involved because of acts of their authorities producing effects outside their own territory.” Similarly, in Loizidou (preliminary objections), supra note 96, the Court reiterated that the “responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory,” citing Drozd v. France. In Banković v. Belgium, supra note 92, the Court recasts this principle in narrower terms.

104 Id. at para. 73.

105 One additional element of the Banković v. Belgium, id. decision warrants closer inspection. In that case, the Court noted that “the Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States.” Id. at para. 80. It found that “the Convention is a multi-lateral treaty operating … in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States.” Id. As the Federal Republic of Yugoslavia was not a party to the Convention, it did not comprise part of this legal space. Essentially, the Court found that the European human rights system was designed within and for a particular region, and was not intended to make Council of Europe states responsible for securing the rights of individuals throughout the world. This proposition is questionable. A number of considerations support a finding that regional human rights obligations do apply to a state's conduct beyond regional frontiers. Chief among these is the notion of universality. The very idea of human rights supports a finding that they would apply vis-à-vis all human beings. Although regional human rights norms are generated and formulated within a regional framework, they purport to be universally applicable. As such, the focus of human rights law generally is on how states ought to behave with respect to any human being under their control. Thus, it is clearly established in the jurisprudence of all regional human rights bodies that human rights obligations apply irrespective of the nationality of the victim. The regional nature of the treaty speaks not to the scope of beneficiaries, but to the willingness of states within the region to agree to a particular treaty regime and system of collective enforcement. As expressed in the preamble of the European Convention, “the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, [were resolved] to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.” Finally, the European Court's jurisprudence is itself in flux with respect to this issue. The Court has diminished the force of its “legal space” argument. See Issa v. Turkey, infra note 123, at para. 74.

106 Id. at para. 75.

107 The Court thus appeared to exclude conduct committed against the wishes of the territorial state, unless imposed through military occupation of the territory. This stands in stark contrast to the finding of the Human Rights Committee that the expressed scope of 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.” Burgos/Lopez, supra note 55, at para. 12.3.

108 Ilaşcu v. Moldova and Russia, 2004-VII Eur. Ct. H. R. 1030 (GC).

109 Id. at para. 312 (citations omitted).

110 Id. at para. 313.

111 Id.

112 Id.

113 Id. at para. 322.

114 Id. at para. 331.

115 This, of course, is not an example of extraterritorial application, since the victims were within the territory of Moldova; however, it is relevant to the Court's jurisprudence on extraterritoriality, as will be discussed infra.

116 Id. at para. 376. Interestingly, the Court then rephrases its inquiry, stating that “the Court's task is to determine whether… the Russian Federation can be held responsible for the alleged violations.” Para. 377. The Court here blurs the issue of responsibility with the issues of attribution as well as the scope of the State's jurisdiction. See infra.

117 Id. at para. 382.

118 Id. at para. 392. Here the Court seems to employ an even lower standard—“decisive influence” or dependence (“survives by virtue of”)—for attribution. Given the Court's reference, earlier in its judgment, to the continuity of internationally wrongful acts, the Court may believe that applying a lower standard for attribution in this context is warranted. However, the rules referred to by the Court in its discussion of the continuity of internationally wrongful acts pre-suppose an initial breach. In this instance, the pre-ratification conduct of the Russian Federation cannot constitute a breach of the Convention. Thus, the standard for continuity of an existing violation is inapplicable. Also, use of the phrase “survives by virtue of” Russian support parallels language used by the Court in Cyprus v. Turkey, supra note 91, in finding the conduct of the TRNC attributable to Turkey. However, in that case the finding of attribution was based primarily on Turkey's overall control of the territory of northern Cyprus.

119 The Court appears to use the term “MRT” to refer alternatively to the territory of Transdniestria as well as to the separatist regime.

120 laşcu v. Moldova and Russia, supra note 108, at para. 393.

121 Id. at para. 394.

122 While the Court purports to rely on the established Law of State Responsibility in formulating its rules of attribution, it in fact departs from those rules significantly.

123 Further, this is the inverse of its findings in the northern Cyprus cases. While the Ilaşcu Court cites its earlier jurisprudence relating to Turkey's responsibility in northern Cyprus, it neglects to point out that in that case, the conduct of the TRNC was initially found attributable to Turkey because of Turkey's effective overall control of the territory. All of the subsequent findings of attribution stemmed from this original finding. Absent reliance on a territorial control argument, the Ilaşcu court seems to reduce its “jurisdiction” inquiry to the simple question of whether alleged infringements were attributable to the Russian Federation. In so doing, the Court seems to have adopted a much lower standard than those set forth in Banković v. Belgium, supra note 92.

124 Issa v. Turkey, 41 Eur. Ct. H.R. 27 (2004).

125 Id. at para. 71.

126 One of the reasons for the apparent inconsistencies in the Court's jurisprudence may be the different ways in which the Court has formulated the question of whether extraterritorial conduct of the state has fallen within the scope of Article 1. While the text of article one requires Contracting States to secure rights “to everyone within their jurisdiction,” the Court has framed the question in a variety of ways. The Court variably refers to individuals, acts, matters, or property being within the jurisdiction of the particular state. At other times, the Court frames the question exclusively as one of attribution without clearly explaining the relationship between attribution and the separate question of whether individuals fall within the jurisdiction of the state.

127 It does, however, cite Commission cases, including W.M. v. Denmark, supra note 93.

128 This formulation is almost identical to that used by the Human Rights Committee in Burgos/Lopez, which the Court had criticized in Banković v. Belgium, supra note 92.

129 Operational Law Handbook, The Judge Advocate General's Legal Center and School ch. 3 (Grimes, Maj. Derek I., ed., 2005)Google Scholar [hereinafter JAG OLH], (“Human rights law established by treaty generally only binds the state in relation to its own residents; human rights law based on customary international law binds all states, in all circumstances.”) It should be noted, however, that the US rejects extraterritorial application of the ICCPR.

130 Banković v. Belgium, supra note 92,

131 Wall opinion, supra note 8, at para. 112.

132 It could also be argued that economic and social rights have considerable implications in the sphere of resource allocation and expanding jurisdiction in this regard might hinder their realization within the national territory itself.

133 DRC v. Uganda, supra note 69, at para. 216.

134 As noted above, the Court did not include the ICESCR in its list of applicable treaties.

135 W.M. v. Denmark, supra note 93, at para. 2.

136 Id.

137 Cyprus v. Turkey, supra note 91, at para. 77.

138 W.M. v. Denmark, supra note 93, at para. 1. (Emphasis added J.C.).

139 See, e.g., Al-Skeini v. Sec. of State for Defence [2005] EWCA 1609 (Civ), at para. 48 [hereinafter Al-Skeini (CA)]. This also seems to be the case with respect to customary human rights law. In general, customary law recognizes a narrower range of rights than that provided under treaty law. Further, the extraterritorial application of customary human rights law may be subject to limitations analogous to those applicable to human rights treaties. For example, the US JAG OLH, supra note 129 notes that when the US carried out detention operations in Haiti as part of Operation Uphold Democracy, US forces complied with the customary human rights norms implicated by that operation, including freedom from arbitrary detention. JAG OLH (“Along this line, the Joint Task Force (JTF) lawyers first noted that the Universal Declaration of Human Rights does not prohibit detention or arrest, but simply protects civilians from the arbitrary application of these forms of liberty denial. The JTF could detain civilians who posed a legitimate threat to the force, its mission, or other Haitian civilian.”) The Handbook notes that detainees were also “entitled to a baseline of humanitarian and due process protections”, including “the provision of a clean and safe holding area; rules and conduct that would prevent any form of physical maltreatment, degrading treatment, or intimidation; and rapid judicial review of their individual detention. The US did not, however, “step into the shoes of the Haitian government, and did not become a guarantor of all the rights that international law requires a government to provide its own nationals.” Id. at 49. As the US rejects extraterritorial application of human rights treaties, the Handbook refers here solely to customary law. Id. at 48.

140 Banković v. Belgium, supra note 92, at para. 75.

141 Id.

142 See, e.g., Ilaşcu v. Moldova and Russia, supa note 108. See Cerone, Out of Bounds?, supra note 90 at 19.

143 As indicated supra, customary international law may entail a lower level of obligation.

144 Wall opinion, supra note 8, at para. 111.

145 ILC Articles, supra note 45, at Article 2.

146 Wall opinion, supra note 8, at para. 112.

147 Id.

148 Id. at para. 134.

149 DRC v. Uganda, supra note 69, at para. 179.

150 Id. at 211. Similarly, in summarizing its findings of fact in para. 211, the Court enumerated acts of the UPDF as well as omissions (e.g., the UPDF troops “took no steps to put an end to such conflicts” and “did not take measures to ensure respect for human rights and international humanitarian law…”). However, the indicated omissions occurred in areas where Uganda was found to have been an occupying Power.

151 Alejandre v, Cuba, supra note 85, at para. 25.

152 Indeed, the material capability of ensuring rights in extraterritorial cases falling short of occupation is unclear.

153 Banković v. Belgium, supra note 92, at para. 70, interpreting its findings in Cyprus v. Turkey

154 Cyprus v. Turkey, supra note 91, at para. 81

155 Id. at para. 346.

156 W.M. v. Denmark, supra note 93, at para. 1.

157 Id.

158 Banković v. Belgium, supra note 92, at para. 75.

159 Id. at para. 65.

160 Id. at para. 75.

161 Illaşcu v. Moldova and Russia, supra note 108, at para. 333 (emphasis added J.C.). The Court seems to find that only positive obligations are applicable to Moldova in this context. However, it may be that the Court has implicitly determined that negative obligations may be applicable but are simply not implicated by Moldova's conduct. See infra.

162 Id. at para. 352.

163 Id. at para. 351. Note, however, that this blurs the question of jurisdiction with that of responsibility, as discussed below.

164 The Court's confusion becomes complete in Ilaşcu v. Moldova and Russia, supra note 108. For a comprehensive analysis, see Cerone, Out of Bounds?, supra note 90.

165 The Court appears to alternate between the single and plural forms of “obligation.”

166 To the extent that acquiescence would constitute a breach of its obligations. See supra.

167 Issa v. Turkey, supra note 124, at para. 71.

168 The phrase “acts extraterritorially” is meant to encompass acts outside the state's territory, as well as acts within the state's territory that infringe the rights of those situated outside of the state's territory.

169 Similar reasoning is implicit in the jurisprudence of human rights mechanisms finding that the obligation to ensure rights against violations by private actors is bounded by a scope of reasonableness. For example, in the Velazquez-Rodriguez case, supra note 51, the Inter-American Court of Human Rights noted that this obligation was not absolute; the standard is one of “due diligence.” The Court also recognized that ‘[i]t is not possible to make a detailed list of all such measures, since they vary with the law and the conditions of each State Party’ (para. 175). In essence, the inquiry under the American Convention is whether the State party acting in good faith undertook steps that were reasonable in the circumstances. See also Ilaşcu v. Moldova and Russia, supra note 108.

170 By not “dividing them up,” in the words of the Banković Court (supra note 92).

171 Banković v. Belgium, id. at para. 75.

172 This would certainly be more logically consistent than the European Court's approach of variously referring to “matters,” “persons,” “property,” and “acts” being “within their jurisdiction,” the express language of Article 1 notwithstanding, and of conflating attribution, responsibility, and jurisdiction in an effort to achieve the same result.

173 It could even be argued that this is the most reasonable interpretation of the text, rendering recourse to the travaux unnecessary. In any event, the travaux may be read consistently with the above proffered interpretation. While it has been argued persuasively that the drafting history demonstrates the drafters' intent that the ICCPR apply only within the territory of each State Party ( Dennis, Michael J., Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 Am. J. Int'lL. 124 (2005))Google Scholar, that is not the only reasonable reading of the travaux. The statements cited in support of exclusively territorial application demonstrate a concern about extraterritorial application of positive obligations. These statements generally refer to the obligation to ‘ensure’ rights, and cite the impracticability of “ensuring” rights outside of the state's territory. This preoccupation with the application of positive obligations is understandable in light of the fact that during the 1950 debate on inclusion of the word “territory,” the phrase “to respect” had not yet been introduced into the draft Covenant. The existing text used only the phrase “to ensure.” During the March 1950 session of the Commission on Human Rights, Eleanor Roosevelt, speaking as the US representative, recalled her delegation's proposal that article 2(1) be amended to read: “The High Contracting Parties undertake to guarantee to all persons residing on their territory and within their jurisdiction the rights defined in the present covenant.” UN Doc. EICN.4ISR. 193, at 13 (1950). As with the phrase “to ensure,” the phrase “to guarantee” includes a positive dimension. Thus, it could equally be said that the desire for exclusively territorial application was limited to the obligation ‘to ensure’ or ‘to guarantee,’ and was not intended to limit the obligation “to respect,” which was subsequently introduced into the draft Covenant.

174 The structure of the American Convention on Human Rights even more readily lends itself to this interpretation. Article 1 of the American Convention provides that states parties undertake “to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination…” It would appear from the structure of the text that “all persons subject to their jurisdiction” modifies only the obligation to ensure rights. The text of the CROC, which provides “[s]tates Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination,” does not readily lend itself to this interpretation. Placing the scope language after the reference to the rights in the Covenant makes it more difficult to find that the limitation of scope applies only to the obligation to ensure. At the same time, this language differs from the ICCPR in two respects. First, as with the ACHR and ECHR, there is no mention of territory. Second, the CROC refers to “their” jurisdiction, making it easier to argue that Convention is applicable to all children within any state party's jurisdiction. Of course, the counter argument would be that since “jurisdiction” is singular, this refers to each state's respective jurisdiction. Alternatively, one could argue that this is merely a reference to jurisdiction in the collective sense (i.e., within their collective jurisdiction). Finally, the establishment of different scopes of application for negative and positive obligations does not derive support from Article 1 of the European Convention as that treaty uses only the term “secure,” as opposed to the subdividing into “respect” and “ensure.” Nonetheless, as indicated above, the Court has consistently recognized a distinction between positive obligations and negative obligations, employing a different analysis to these different types of obligation.

175 It could of course be argued that this was the re-emergence of a much older idea. Jurists such as Grotius had little difficult conceiving of the individual as a subject of international law. International law in that period was largely comprised of natural law, which, as made clear by Grotius, bound in the first place individuals, and was only through extrapolation rendered applicable to states.

176 The notion of human dignity and the language of universality figures prominently in the preambles of all major human rights and humanitarian law treaties of the modern era. Such terminology is also frequently invoked by states, as well as international courts and human rights bodies in discharging their functions.

177 Indeed, many of the tensions highlighted in the above analysis could be said to result from the expansive application of rules designed and intended for predominantly, if not exclusively, internal application.

178 Potential bases of jurisdiction in this context might be the passive personality or protective principles.