Margulies, Peter

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Extraterritoriality and Human Rights: Time for a Change in the U.S. View?

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship3-8-2014Extraterritoriality and Human Rights: Time for aChange in the U.S. View?Peter MarguliesRoger Williams University School of LawFollow this and additional works at: https://docs.rwu.edu/law_fac_fsPart of the International Humanitarian Law Commons, Military, War, and Peace Commons, andthe National Security Law CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, Extraterritoriality and Human Rights: Time for a Change in the U.S. View?, Lawfare (Mar 8, 2018, 8:11 AM),https://www.lawfareblog.com/extraterritoriality-and-human-rights-time-change-us-viewRELATIONSHIP BETWEEN LOAC AND IHRLExtraterritoriality and Human Rights: Time for a Change in the U.S. View?By Peter Margulies  Saturday, March 8, 2014, 8:11 AMAs Jack has frequently observed, legitimacy and effectiveness often go hand-in-hand.  The two comprehensive State Department memoranda byformer Legal Adviser (and Yale Law School dean) Harold Koh released Friday on extraterritoriality under the ICCPR and Convention Against Torturemake this point powerfully and persuasively (see commentary by Marko Milanovic here and Jennifer Daskal here).  Although it seems like the US willpersist in arguing to the contrary (see the summary by Wells here), it’s time for a change, as I urge in my recent Fordham article onextraterritoriality and the NSA.Dean Koh’s ICCPR memo, which I focus on here, ½rst deconstructs the textual point that best supports the current US position.  Article 2(1) of theICCPR binds states parties to “respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized… in theCovenant.”  The US, since the Clinton administration, has interpreted the terms, “within its territory and subject to its jurisdiction,” as conjunctive,meaning the US does not assume duties under the treaty unless an individual is within its territory.  However, Dean Koh points out that ordinaryrules of textual interpretation do not dictate this view.  First, Dean Koh points out that the US reading makes the verb, “respect,” redundant.  Theterm, “respect,” commits a state to refrain itself from violations.  The term, “ensure,” in contrast, entails sweeping af½rmative duties to guaranteerights against incursions by others.  Since “ensure” is a far broader term, it already encompasses the narrower duty to “respect” rights.  Expresslymentioning the duty to “respect” would therefore be unnecessary.  We generally assume that the drafters of a treaty, statute, or constitution did notintend mere surplusage – the words used are supposed to mean something.  The US reading violates this basic tenet.Dean Koh, practicing the lawyer’s trademark skill at close reading, also notes that the US position violates the rules of grammar.  Under the US view,a state party must “respect… to all individuals within its territory and subject to its jurisdiction” the rights listed in the treaty.  Focus on the phrase,“respect… to all individuals.”  In English, French, and the other major treaty languages, we don’t “respect” rights “to” rights holders.  We mightrespect rights “owed to” rights holders.  However, that adds another word, something that the US claims its reading avoids.  Since we assume thattreaty drafters don’t celebrate bad grammar, the need to endure bad grammar or add a word to correct it renders the US stance suspect.Dean Koh also restores Eleanor Roosevelt to her proper place in the ICCPR’s drafting history.  The US has glibly invoked the memory of Roosevelt, aprincipal drafter of the ICCPR, to buttress its narrow reading of the treaty.  Dean Koh, in a de½nitive reading of the ICCPR’s travaux preparatoires,con½rms that Roosevelt sought a narrow construction in only one situation: sparing the U.S. from enacting legislation after World War II to“guarantee” the rights of individuals within Germany and Japan against the depredations of their own governments.  In other context, Rooseveltacknowledged the responsibilities of the US and other states parties.  Any other stance, as Dean Koh observes, would have been incongruous, givenRoosevelt’s insistence that the universality of human rights was a principal bulwark against brutality and despotism.Finally, Dean Koh notes that the current US stance is an unforced error.  Even if the ICCPR applied extraterritorially, US drone and detentionoperations abroad would be governed by the more speci½c law of armed con¾ict (LOAC), under the well-known lex specialis doctrine.  Since, as DeanKoh informed the American Society of International Law in 2010, the US follows LOAC (a point seconded by Mike Schmitt here), we are better servedby joining the contest on that ground.  Avoiding a debate on the merits awards the high ground to those who claim the US cannot mount aneffective substantive defense of its choices.  That perception does not serve the law or American interests.Topics: Relationship between LOAC and IHRL, International Law, Extraterritoriality, NIAC: Con ict with IHRL, Non-International Armed Con ictPeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, National SecurityLaw and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the Bush Administration (New York:NYU Press, 2010).

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Extraterritoriality and Human Rights: Time for a Change in the U.S. View?

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