Reflections

This post was originally published July 29, 2015 on Just Security

Last week the UN Human Rights Committee, the independent body created by the International Covenant on Civil and Political Rights (ICCPR) to monitor states’ compliance, issued its Concluding Observations (COBs) on the periodic reports of seven states, including Canada, France, and the United Kingdom. These most recent statements of concern and recommendations to those states may exhibit an innovation in the committee’s approach to the perennial debate over extraterritorial application of the ICCPR. They suggest a broadened understanding of the concept of “jurisdiction” that links an individual overseas to a state and triggers the state’s ICCPR obligations, although the committee has not clearly articulated or explained the change.

The COBs on France and the United Kingdom both address issues of surveillance of communication, within and outside national territory. The observations on the UK (and a March 2014 COB on the USA) seem to assume that extraterritorial communications surveillance raises privacy issues under article 17 of the Covenant, regardless of the nationality of the parties to the communication. (The COBs for France are less explicit on the latter point.) The committee therefore expresses concern about overbroad and unchecked surveillance practices, and makes a series of recommendations for reform.

If one probes the committee’s assumption that extraterritorial communications surveillance always raises privacy issues under the Covenant, the following question arises: How does the committee explain the relationship between extraterritorial surveillance of foreign nationals and the undertaking of each state party to the ICCPR “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,” as article 2(1) of the treaty provides? 

It is well-known that the committee interprets the phrase “within its territory and subject to its jurisdiction” disjunctively, despite the disagreement of some states parties, and I am not questioning that interpretation. The problem lies in how one defines “individuals … subject to its jurisdiction” in a manner that brings all extraterritorial surveillance of private communications within the scope of the ICCPR. The committee has not yet, to my knowledge, provided an official explanation of that point. The committee did, however, officially elaborate the meaning of article 2(1) in 2004. In its General Comment No. 31 on the nature of the general legal obligation imposed on states parties to the Covenant, the committee explained 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. … This principle 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 peacekeeping or peace-enforcement operation.”

That interpretation provides an obvious explanation for last week’s concluding observation regarding allegations of sexual abuse of children by French peacekeepers in the Central African Republic, but one might still ask how individuals around the world whose communications are intercepted are “within the power or effective control” of France.

There is no shortage of theories proposing to fill out the content of “jurisdiction” for the purpose of determining the scope of human rights treaties, ranging from physical custody to any adverse impact on the enjoyment of human rights, and perhaps beyond. The question is which understanding the Human Rights Committee employs.

New light on that question might arise from one of the recent COBs on Canada, on a somewhat different topic: Business and Human Rights. The dialogue with Canada addressed the extraterritorial activities of multinational corporations and their effect on human rights. According to the UN press release describing the dialogue, the delegation responded that Canada’s policy was influenced by the UN Guiding Principles on Business and Human Rights, but that Canada’s commitment to ensure the application of the Covenant related to individuals on Canadian territory. The resulting observation reads as follows:

6. While appreciating information provided, the Committee is concerned about allegations of human rights abuses by Canadian companies operating abroad, in particular mining corporations and about the inaccessibility to remedies by victims of such violations. The Committee regrets the absence of an effective independent mechanism with powers to investigate complaints alleging abuses by such corporations that adversely affect the enjoyment of the human rights of victims, and of a legal framework that would facilitate such complaints (art. 2).

The State party should: a) enhance the effectiveness of existing mechanisms to ensure that all Canadian corporations, in particular mining corporations, under its jurisdiction respect human rights standards when operating abroad; b) consider establishing an independent mechanism with powers to investigate human rights abuses by such corporations abroad; c) and develop a legal framework that affords legal remedies to people who have been victims of activities of such corporations operating abroad.

This COB is rather strong in its implications of the relevance of the Covenant. True, the committee merely “regrets” the absence of an effective independent mechanism, rather than saying that one is required, and says that the state should “consider establishing” one, rather than “should establish” one. Nevertheless, the committee also asserts that Canada should enhance the existing mechanisms, and should develop a remedial framework for overseas victims of all Canadian corporations that are under its jurisdiction. Note that “jurisdiction” may have migrated from being a link to the individual whose rights the state should ensure, to being a link to the corporation, whose respect for everyone’s rights the state should ensure.

This COB on Business and Human Rights is not wholly unprecedented in the Human Rights Committee. (Other treaty bodies have gone further, but they do not have article 2(1) of the ICCPR to contend with.) The committee’s prior example was a much softer COB in October 2012 regarding Germany:

16. While welcoming measures taken by the State party to provide remedies against German companies acting abroad allegedly in contravention of relevant human rights standards, the Committee is concerned that such remedies may not be sufficient in all cases (art. 2, para. 2).

The State party is encouraged to set out clearly the expectation that all business enterprises domiciled in its territory and/or its jurisdiction respect human rights standards in accordance with the Covenant throughout their operations. It is also encouraged to take appropriate measures to strengthen the remedies provided to protect people who have been victims of activities of such business enterprises operating abroad.

That recommendation tracked more closely the soft language of the Guiding Principles on Business and Human Rights, and the concern was tied to the adequacy of an existing mechanism in Germany, the German National Contact Point under the OECD Guidelines for Multinational Enterprises, which invited the victims to bring in their disputes. The Guiding Principles themselves had not purported to base the “expectation” of corporate respect for ICCPR rights on an expansive interpretation of states’ legal obligations under article 2.

Again, there may be no shortage of theories to explain why multinational corporations should be regarded as agents of their domicile state, or why their activities abroad should be otherwise regarded as subjecting persons whose enjoyment of human rights they adversely affect to the jurisdiction of the domicile state. The question is which, if any, of these theories the committee endorses, and what else follows from that endorsement.

Of course, it could be said that this is only a Concluding Observation, not a finding of a violation of the ICCPR in Views on an individual communication. COBs do not necessarily express the definite legal conclusions of the committee. In that regard, it is also interesting to read the Summary Record of the committee’s consideration of a report on follow-up to concluding observations, and in particular to the 2014 COBs on the United States of America. Summary records are abbreviated, and should always be read with a grain of salt, but this document, if accurate, opens a window on possible disagreement within the current committee on the implications of the COBs on extraterritorial surveillance. It appears that an objection was raised to characterizing the recommendations as invariably grounded on ICCPR obligations, because that characterization would go further than General Comment No. 31 would support.

The texts from the July 2015 session do not definitely establish that the committee has adopted a new definition of “jurisdiction” for purposes of article 2(1). They do suggest, however, that the committee might need to modify either its definition or its practice. An expanded definition of jurisdiction could have implications for the application of the Covenant to many other forms of activity or inactivity that has effects on individuals abroad. Theorists have new grist for their mills, but clarification from the Human Rights Committee would also be welcome.