The United States recently had the chance to reverse its ill-considered position that human rights obligations stop at its border. Regrettably, it failed to do so at a meeting last month before the UN Human Rights Committee in Geneva, despite strong support for a more global view of human rights from within its own State Department.
Since the mid-1990s, the US has maintained that its duties under the International Covenant on Civil and Political Rights (ICCPR), a leading human rights treaty, do not apply outside the country even where the US exercises control over the territory, person or situation in question. This position was originally articulated when the US was under criticism for its policy of intercepting Haitian refugees at sea. It continues to have far-reaching implications. Today, it looms over such issues as the detention and transfer of terrorism suspects, lethal drone strikes, and bulk data collection by intelligence agencies.
Two recently leaked memos by former State Department Legal Adviser Harold Koh demonstrates why the current US position is misguided as a matter of both law and policy. In one memo, Koh explains that the ICCPR distinguishes between “ensuring” and “respecting” human rights. While the US may be under an affirmative obligation to ensure human rights only within its own territory, it is always under a duty to respect human rights any place it exercises authority or control. To contend otherwise contradicts the fundamental premise of human rights, which are global in nature.
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In a separate memo, Koh dismantles the current US position on the UN Convention against Torture (CAT). As Koh explains, a state’s obligations under CAT extend wherever it exercises effective control, even if it is operating overseas. Those obligations not only bar torture and other cruel, inhumane, or degrading treatment, but also prohibit sending a person to another country where there is a substantial risk they will endure such treatment there. This obligation applies at all times, even during time of war.
The US, to be sure, acknowledges that it follows many human rights guarantees as a matter of policy. To ensure lawful interrogations, for example, President Barack Obama issued an executive order in 2009 banning torture and other inhumane treatment. This order helped lead to significant reforms in US counter-terrorism operations, bringing them closer in line with international law.
But compliance with human rights norms should not be a matter of choice. It was precisely the notion that the US is not bound by human rights law outside its borders that led to the creation of Guantanamo and secret CIA black sites.
Acknowledging the global reach of human rights law is significant for another reason. As long as the US maintains it is engaged in a war with al-Qaeda and associated groups, it can continue to argue that its counter-terrorism operations are governed by the law of war, a separate body of law that displaces human rights protections when it comes to such matters as using lethal force against an enemy fighter.
While the conception of a war on terror remains controversial for a number of reasons, it does not depend on the geographic scope of human rights treaties. But failing to recognise the binding nature of those treaties for actions overseas still creates a legal vacuum that will remain once the war on terror concludes.
Most importantly, making human rights optional sends a dangerous message to other states. As Koh explained, “The denial of the legal obligation invites suspicion and distrust from our audiences, domestic and foreign.” This double standard provides a potential excuse for other states to opt out of their obligations, undermining the larger international human rights system.
There are several possible explanations for the continued US intransigence. It may reflect a concern about the impact recognising a global right to privacy might have on US surveillance and bulk data collection activities overseas. It also may indicate a more general desire on the part of the US to keep its options open, thus retaining flexibility in grey areas where it would prefer not to be bound.
But law commands obedience; otherwise, it’s not law. The US cannot be a leader in the field of human rights as long it maintains its position that respecting those rights is policy choice.
Jonathan Hafetz is Associate Professor of Law at Seton Hall Law School and the author of “Habeas Corpus after 9/11: Confronting America’s New Global Detention System.”