Universal Human Rights and Extraterritorial Obligations

Mark Gibney, Sigrun Skogly, Mark Gibney, Sigrun Skogly

• Publisher: University of Pennsylvania Press
• Year: 2012
• ISBN:
  9780812204841
• Topic: Politique et relations internationales
• Subtopic: Droits de l'homme

Globalization challenges fundamental principles governing international law, especially with respect to state sovereignty and international relations. This transformation has had a significant impact on the practice of trade law, financial regulation, and environmental law but relatively little effect on one area of law and regulation: human rights. Universal Human Rights and Extraterritorial Obligations examines both the international and domestic foundations of human rights law. What other contemporary human rights debates have almost totally ignored is that in an increasingly interdependent world—where public and private international actors have great influence on the lives of individuals everywhere—it is insufficient to assess only the record of domestic governments in human rights. It is equally important to assess the effect of actions taken by intergovernmental organizations, international private entities, and foreign states.From this standpoint, contributors to this book address how states' actions or omissions may affect the prospects of individuals in foreign states and asks important questions: To what extent do agricultural policies of rich countries influence the right to food in poorer countries? How do decisions to screen asylum seekers outside state borders affect refugee rights? How does cooperation among different states in the "war on terror" influence individuals' rights to be free from torture? This volume presents a brief for a more complex and updated approach to the protection of human rights worldwide.

Chapter 1

Obligations of States to Prevent and Prohibit Torture in an Extraterritorial Perspective

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Manfred Nowak

The Notions of Territory and Effective Control

The prohibition of torture and other forms of cruel, inhuman, or degrading treatment or punishment (CIDT), that is, the right to the physical and mental integrity of the human being, is one of the few absolute and non-derogable rights under international human rights law, which even ranks as jus cogens pursuant to article 53 of the Vienna Convention on the Law of Treaties (Simma and Alston 1992; UN Human Rights Committee 2004). All general human rights treaties dealing with civil and political rights contain a provision on the right to personal integrity, which is sometimes phrased in purely negative terms. For example, article 7 of the International Covenant on Civil and Political Rights (ICCPR) provides: “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” In article 5 of the American Convention on Human Rights (ACHR), this negative obligation of states parties is preceded by the positive right of all persons to have their physical, mental, and moral integrity respected.¹ Similarly, article 5 of the African Charter on Human and Peoples’ Rights (ACHPR) contains the right of every individual to the respect of the dignity inherent in a human being and combines the prohibition of torture with another absolute and non-derogable right, the prohibition of slavery and the slave trade.

Under contemporary human rights theory, all rights of human beings entail corresponding obligations of states to respect and ensure such rights (Nowak 2003). While respect means refraining from unjustified interference, ensure entails positive obligations of states to protect and fulfill the respective rights. The obligation to protect requires states to avoid human rights violations by private parties, whereas the obligation to fulfill means that states shall take all legislative, administrative, judicial, and other measures necessary to ensure that the rights in question are implemented to the greatest extent possible. It may be further divided into sub-obligations to facilitate, promote, and provide.

In the texts of human rights treaties, these different obligations of states parties are stipulated only in a fairly rudimentary manner. According to article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the high contracting parties have obligated themselves to secure to everyone within their jurisdiction the rights enumerated thereafter. Article 1 of the ACHPR requires African states parties to recognize the rights and to adopt legislative or other measures to give effect to them. Under article 1 of the ACHR, American states parties undertake to respect the rights and freedoms recognized therein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms. While article 2(1) of the ICCPR also uses the terms “respect” and “ensure,” it restricts these obligations to “all individuals within its territory and subject to its jurisdiction.”

In Bankovicć and Others v. Belgium and 16 Other Contracting States, which concerned alleged violations of human rights during the NATO air strikes on the territory of the Federal Republic of Yugoslavia in 1999, the Grand Chamber of the European Court of Human Rights (ECHR) considered the jurisdictional competence of states parties, as defined by the words “within their jurisdiction” in article 1 of the ECHR, as primarily territorial: “While international law does not exclude a State’s exercise of jurisdiction extraterritorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States” (Bankovicć v. Belgium, par. 59). It follows that the phrase “within their jurisdiction” reflects “this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case” (par. 61). While the European Court held in Bankovicć that the bombing of a foreign territory was insufficient to establish a jurisdictional link between the Serbian victims and NATO member states, in its first judgment of 23 March 1995 in Loizidou v. Turkey it accepted that, as a consequence of military action on the ground, Turkey exercised “effective control” of an area outside its national territory, that is, the so-called Turkish Republic of Northern Cyprus, and that the obligations of Turkey under article 1 of the ECHR, therefore, also applied to this part of Cyprus (par. 62). Although the court uses the concept of “extraterritorial jurisdiction” in this respect, it only applies the territorial jurisdictional principle to other territory that is outside a state’s “own territory” but nevertheless under its effective control.

Similarly, in the case of Ilaşcu and Others v. Moldova and Russia, the European Court of Human Rights held the Russian Federation responsible for violations of articles 3 and 5 of the ECHR in the territory of Transdniestria, a separatist region of Moldova. According to the court, the Russian authorities had provided, and continued to provide, military, political, and economic support to the separatist regime of the “Moldavian Republic of Transdniestria” (the “MRT”). Therefore, the court concluded that the “MRT” was under the effective authority of Russia and thus held Russia responsible for acts of torture and unlawful deprivation of liberty. In Issa v. Turkey, the court in a further step affirmed that military action—whether lawful or unlawful—of one state on the territory of another could amount to effective control and thus to an exercise of jurisdiction within the meaning of article 1 of the ECHR. Moreover, a state might also be held accountable for violations of rights of persons through agents of one state operating on the territory of another state, thereby putting the person whose rights are violated under its authority and control. In the case in question, however, the court was not satisfied with the evidence linking a Turkish military operation in northern Iraq to the alleged unlawful arrest, detention, ill-treatment, and subsequent killing of seven Iraqi shepherds. In the case of Öcalan v. Turkey, the court also accepted that the arrest or detention of a person by agents of a state party abroad in principle falls within the jurisdiction of this state. Abdullah Öcalan, the leader and founder of the Kurdish organization PKK, had been arrested by Turkish security forces inside an aircraft at Nairobi Airport, Kenya. In its first judgment of 12 March 2003, which was confirmed by the Grand Chamber on 12 May 2005, the court held the opinion that after the applicant had been handed over by the Kenyan officials to the Turkish officials he was under the effective authority of Turkish officials and was therefore within Turkish “jurisdiction” for the purposes of article 1 of the ECHR.

Although the obligation of states parties under article 2(1) of the ICCPR to respect and ensure the rights of the covenant explicitly is restricted to “individuals within its territory and subject to its jurisdiction,” the UN Human Rights Committee has interpreted this provision in accordance with the object and purpose of the treaty. In the early Passport Cases, it held Uruguay responsible for violations of the right to freedom of movement committed by its diplomatic representatives abroad. Furthermore, in López Burgos v. Uruguay (Comm. no. 52 [1979]), it accepted the jurisdiction of Uruguay in relation to victims who were kidnapped by its agents in neighboring states. In its General Comment 31 on the Nature of Legal Obligations, the Human Rights Committee formulated the rule that each “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 peace-keeping or peace-enforcement operation” (UN Human Rights Committee 2004, par. 10).

This legal opinion was confirmed only three months later by the International Court of Justice in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The court held that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in article 4 of the ICCPR, and that international human rights treaties, including the ICCPR, are applicable in respect of acts done by a state in the exercise of its jurisdiction outside its own territory, such as by Israeli acts within the Occupied Palestinian Territory.

To sum up, “extraterritorial jurisdiction,” in the sense of a broader definition of territory than a state’s “own territory,” has been accepted by international case law whenever the authorities of a state party exercise “effective control” over territory or persons outside the state’s own territory in the narrow sense. It is irrelevant whether these actions are permissible under international law (for example, sovereign acts by diplomatic or consular representatives, by border officials in customs-free zones, on board a ship or aircraft registered in that state, in the territory of another state with the consent of this state, or by international peace-keeping or peace-enforcement troops) or not (for example, illegal occupation of foreign territory or kidnapping of persons by security agents abroad) (Coomans and Kamminga 2004).

Usually, this general recognition of “extraterritorial jurisdiction” applies to the obligation of states to respect the rights in question. States are held accountable if their occupation forces in a territory under their effective control subject the population to torture or CIDT, or if their security agents torture a person whom they have kidnapped in foreign territory. More controversial is the question to what extent states are required to take the necessary positive measures to ensure these rights by means of protection and fulfillment outside their own territory. While these questions have been addressed in the literature primarily in the context of economic, social, and cultural rights and in respect of international development cooperation (Vandenhole 2007a; Skogly 2006), the following will focus on the specific obligations of states parties under the UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) of 1984. Since the prohibition of torture and CIDT is already contained in other (general) human rights treaties, this special convention contains various additional obligations aimed at the prevention of torture and CIDT, the use of criminal law and justice against the perpetrators of torture, and the guarantee of a right of victims of torture to a remedy and adequate reparation. Most of these provisions fall under the category of obligations to fulfill. Some provisions (that is, arts. 2[1], 11–13, and 16) contain an explicit territorial jurisdiction clause, while others do not. For certain provisions, this distinction seems evident, while for others it might lead to difficult questions of interpretation.

Obligation of States to Prevent Torture and CIDT

Article 2 of the CAT requires states parties to “take effective legislative, administrative, judicial, and other measures to prevent acts of torture in any territory under its jurisdiction,” and article 16 contains a similar obligation to prevent other acts of CIDT. Article 3 of the original Swedish draft of 1978 had foreseen to prevent torture and CIDT from being practiced within the states parties’ jurisdiction. Since this formulation might also cover jurisdiction on the basis of the nationality principle, a French proposal of 1979 to replace the words “within its jurisdiction” by “any territory under its jurisdiction” was accepted. But the delegations in the Working Group of the Commission on Human Rights emphasized that such wording would also cover torture inflicted aboard ships or aircraft registered in the state concerned as well as occupied territories.² It follows that the “extraterritorial obligations” outlined above on the basis of the case law of international human rights treaty monitoring bodies with respect to the obligation of states parties to respect the right to personal integrity in principle also apply to the various obligations to fulfill this right by means of taking preventive measures as provided for in the CAT. If a state occupies the territory of another state, for example, it must ensure that its occupation authorities both refrain from practicing torture and take necessary positive measures to prevent torture from being practiced.

What are these preventive measures required by the CAT? Typical obligations to prevent torture and CIDT can be found in articles 10 (education and training of law enforcement and other personnel), 11 (systematic review of interrogation methods and prison rules), 12 (ex officio investigation of torture cases), 13 (investigations of allegations by torture victims), and 15 (non-admissibility of evidence extracted by torture in any proceedings). Some of these provisions contain a specific territorial jurisdiction clause while others do not. For example, article 11 restricts the obligation of every state party to keep interrogation methods and prison rules under systematic review to detention facilities “in any territory under its jurisdiction,” while article 10 contains a general obligation to include the prohibition of torture in the training of any “law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation, or treatment of any individual subjected to any form of arrest, detention, or imprisonment.” The latter obligation seems to be based more on the active nationality (personality) principle than on the territoriality principle. In other words, if a soldier of State A, who serves under the command of State B in a UN peace operation in State C, commits an act of torture, the United Nations and State B might be responsible under the broader territoriality principle of effective control outlined above, but State A might also be responsible for having failed to provide anti-torture training to its military personnel in accordance with article 10 of the CAT. But the obligation under article 11 to keep prison rules under systematic review only applies to detention facilities in any territory in which the respective state party exercises effective control, such as detention facilities of the United States in Iraq. Similar conclusions can be drawn from the fact that article 13 contains a specific territorial jurisdiction clause, whereas articles 14 and 15 lack such a provision.

In addition to the specific obligation to prevent outlined above, most other substantive provisions of the CAT also have a preventive effect. This applies to the prohibition of refoulement in article 3, as well as to the obligation to criminalize torture and establish broad criminal jurisdiction over perpetrators of torture in articles 4 to 9. For example, the Committee against Torture in Guridi v. Spain held that the pardoning by the government and the king of Spain of three members of the Civil Guard, who had been convicted of torture and sentenced by a Spanish court, constituted a violation of article 2(1) of the CAT because the absence of appropriate punishment was not compatible with the duty to prevent acts of torture. In general, many legal safeguards in the context of the right to personal liberty and the administration of justice—such as the right to habeas corpus; prompt access of detainees to lawyers, doctors, and family members; the prohibition of secret places of detention, prolonged incommunicado detention, and solitary confinement—serve the purpose of preventing torture and ill-treatment. Finally, unannounced visits to all places of detention by independent domestic and international bodies and private interviews with detainees, such as provided for by the European Convention for the Prevention of Torture of 1987 and the UN Optional Protocol to the Convention against Torture (OPCAT) of 2002, seem to be among the most effective measures for the prevention of torture and CIDT.

Most of these provisions only apply to the territorial jurisdiction of states in the broader sense (effective control) outlined above. For example, under article 4 of OPCAT, each state party is required to grant the UN Subcommittee on Prevention and the respective national preventive mechanisms access to all places of detention “under its jurisdiction and control.” This means, on the one hand, that the authorities have no obligation to provide access to places of detention that are under their jurisdiction but not under their de facto control. If parts of a state’s territory are occupied by another state (for example, the northern part of Cyprus or the territory of Kosovo formerly in Serbia), or under the de facto control of insurgent groups (for example, parts of the territory of Sri Lanka), or governed by de facto authorities (for example, the territories of Abkhazia and South Ossetia in Georgia), the respective governments are not required to provide access to the places of detention in such territories. On the other hand, foreign states exercising jurisdiction and control outside their own territories over places of detention, such as the Turkish authorities in the northern part of Cyprus or the U.S. authorities in relation to detention facilities under their control in Iraq and Afghanistan, are under an obligation, provided they become states parties to the OPCAT, to allow visits of the UN Subcommittee on Prevention and the respective national preventive mechanisms.

Torture and Counterterrorism

The prohibition of torture is one of the few absolute and non-derogable rights under international human rights law. This was confirmed by article 2(2) of the CAT: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Nevertheless, in reaction to the terrorist attacks of 11 September 2001, this absolute prohibition of torture came under attack by global counterterrorism strategies under the lead of the United States. In addition to attempts to justify torture for the sake of preventing terrorist attacks and saving lives of potential victims in the so-called ticking bomb scenario, governments also aimed at circumventing their obligations under the CAT by outsourcing torture practices to private security personnel and detention facilities outside their own territory.

The U.S...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• Chapter 1. Obligations of States to Prevent and Prohibit Torture in an Extraterritorial Perspective
• Chapter 2. Obligations to Protect the Right to Life: Constructing a Rule of Transfer Regarding Small Arms and Light Weapons
• Chapter 3. Growing Barriers: International Refugee Law
• Chapter 4. Diagonal Environmental Rights
• Chapter 5. The Human Rights Responsibility of International Assistance and Cooperation in Health
• Chapter 6. The World Food Crisis and the Right to Adequate food
• Chapter 7. Labor Standards and Extraterritoriality: Cambodian Textile Exports and the International Labour Organization
• Chapter 8. A Sort of Homecoming: The Right to Housing
• Chapter 9. Protecting Rights in the Face of Scarcity: The Right to Water
• Notes
• Bibliography
• List of Contributors
• Index