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In a post at Just Security on Thursday, my friend Ryan Goodman takes issue with my testimony before the Privacy and Civil Liberties Board, in which I said that even if the U.S. Government agreed that the ICCPR applies outside the territory of the United States, the ICCPR would still not apply to NSA surveillance of foreign nationals in other countries because the targets of that surveillance are not “within the power or effective control” of the United States. Ryan says that my statement is “inconsistent with the record” of the Committee’s past decisions. But I was not providing my own interpretation of the scope of the ICCPR. I was quoting from the definition of the scope of the Covenant provided by the Human Rights Committee itself. In paragraph 10 of its General Comment 31 (2004), the Committee said that the obligation of States set forth in article 2, paragraph 1 “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.” Paragraph 10 goes on to state that the ICCPR also “applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation.” The definition in General Comment 31 (which the U.S. Government does not consider to be binding on State Parties but nonetheless reflects the Committee’s own interpretation of the ICCPR) was adopted by the Committee in 2004, more than fifteen years after the dates of the two decisions Ryan cites as examples of the Committee’s applying the Covenant to persons outside the territory of a Party. Moreover, those two cases involved individuals over whom the State Parties did have some at least some control (in one case, a Uruguayan national in Mexico to whom Uruguay had refused to give a passport, and in the other case, Senegalese nationals who had served in the French Army when Senegal was part of the French Union). As I said in my PCLOB testimony, even if the United States had certain obligations under the ICCPR outside its territory, I simply do not see how the targets of NSA surveillance can be considered “within the power or effective control” of the United States, either under the definition in General Comment 31, or under the logic of the two cases Ryan cites, simply because the U.S. can collect their communications. That said, I recognize that both the Human Rights Committee, in its concluding observations on the U.S. ICCPR report, and certain other human rights advocates apparently argue that Article 17 of the ICCPR does apply to, and place limits on, NSA’s electronic surveillance outside the United States. But this position (which I do not suggest that Ryan Goodman shares) is inconsistent both with General Comment 31 and the Committee’s own jurisprudence. It is yet another example of some human rights advocates declaring international law as they would like it to be, not as States have actually agreed it is. Such strained interpretations of existing human rights treaties are, unfortunately, counterproductive because they make it harder for the Executive branch to convince skeptical Republican Senators to approve new human rights treaties, such as the U.N. Convention on the Rights of Persons with Disabilities.
John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter in Washington, DC. He is also Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009, as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, and as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001.
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