When Do Human Rights Treaty Obligations Apply Extraterritorially? Oona A
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HUMAN RIGHTS ABROAD: When Do Human Rights Treaty Obligations Apply Extraterritorially? Oona A. Hathaway∗ Philip Levitz, Elizabeth Nielsen, Aileen Nowlan, William ∗∗ Perdue, Chelsea Purvis, Sara Solow, and Julia Spiegel The second half of the twentieth century saw an explosion of human rights law. Before World War II, there were almost no significant multilateral human rights agreements.1 In the years following the war, sixteen multilateral agreements were concluded through the United Nations alone.2 These twentieth-century agreements were distinctive from most international law that came before them in that they placed the international community between a sovereign state and its own citizens. No longer could states act within their own borders with absolute impunity. Yet even before the ink was dry on these post-war agreements, a question emerged that remains a subject of intense debate today: What limits, if any, do human rights agreements place on the behavior of states outside their own territory? In this Article, we begin to answer that question. We do so by examining developments in the extraterritorial application of human rights treaties in foreign jurisdictions and international tribunals across the globe. Building upon earlier scholarship,3 we review the recent developments in the jurisprudence of the Supreme Court and Federal Court of Appeal of Canada, the Supreme Court of the United Kingdom, the European Court of Human Rights, the Inter-American Commission on Human Rights, the ∗ Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School. ∗∗ J.D. Candidates, Yale Law School. 1. Convention to Suppress the Slave Trade and Slavery, League of Nations, Sept. 25, 1926, 60 L.N.T.S. 253, available at http://www.unhcr.org/refworld/docid/3ae6b36fb.html. 2. Chapter IV: Human Rights, UNITED NATIONS TREATY COLLECTION, http://treaties.un.org/pages/Treaties.aspx?id=4&subid=A&lang=en (last visited Mar. 29, 2011). 3. See generally Diane Marie Amann, Guantánamo, 42 COLUM. J. TRANSNAT’L L. 263 (2004); Jacco Bomhoff, The Reach of Rights: “The Foreign” and “The Private” in Conflict-of- Laws, State-Action, and Fundamental-Rights Cases with Foreign Elements, 71 LAW & CONTEMP. PROBS. 39 (2008); Sarah H. Cleveland, Embedded International Law and the Constitution Abroad, 110 COLUM. L. REV. 225 (2010); Gerald L. Neuman, Understanding Global Due Process, 23 GEO. IMMIGR. L.J. 365 (2009). 2 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. International Court of Justice, the Committee Against Torture, and the Human Rights Committee of the International Covenant on Civil and Political Rights. Our goal in this cross-national examination is to discover whether these courts have developed a coherent standard or approach from which the United States might learn. What we find is a remarkable degree of coherence and consistency. All but one of the jurisdictions we examine here has articulated a test for the extraterritorial application of human rights treaties that turns on the government’s “effective control” over the territory, person, or situation in question. Moreover, most foreign and international bodies have remained remarkably consistent in their approach to this question over the past few years, despite the pressures placed on them by the “War on Terror.” Indeed, to the extent there has been any shift, the U.K. courts have moved closer to the global norm by applying a more expansive extraterritorial application of human rights obligations abroad. The decisions of these foreign and international courts are relevant to the United States in two key respects. First, the United States is a party to the International Covenant on Civil and Political Rights and the Convention Against Torture.4 Hence, the interpretations of the Human Rights Committee (tasked with interpreting and enforcing the Covenant) and the Committee Against Torture (tasked with interpreting and enforcing the Convention Against Torture) have direct implications for U.S. practice. Second, U.S. courts may consider the example of these foreign and international jurisdictions and tribunals in developing their own jurisprudence on the question of applying human rights law extraterritorially. U.S. courts have not yet articulated a clear and consistent standard for when to apply human rights treaties extraterritorially and thus stand to learn a great deal from foreign and international courts that have done so. In making this claim, we are guided by Justice Sandra Day O’Connor’s work both on and off the bench. She has long been a leading advocate of looking to foreign and international standards not as binding precedent, but as a source of information that may help guide judicial decision-making in the United States. At a 2003 conference in Atlanta, for example, Justice O’Connor noted that “conclusions reached by other 4. International Covenant on Civil and Political Rights, Status of Ratifications, Reservations and Declarations, U.N. Treaty Collection, http://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (last visited Feb. 5, 2011) (ratified by the United States in 1992); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Status of Ratifications, Reservations and Declarations, U.N. Treaty Collection, http://treaties.un.org/Pages/ViewDetails.aspx?src= &mtdsg_no=IV-9&chapter=4&lang=en (last visited Feb. 5, 2011) (ratified by the United States in 1994) [hereinafter Status of Ratifications]. 43:0000] HUMAN RIGHTS ABROAD 3 countries and by the international community, although not formally binding upon our decisions, should at times constitute persuasive authority in American courts.”5 While a member of the Supreme Court, Justice O’Connor made clear that it is particularly appropriate to look to the views of other countries in matters of treaty interpretation. As she wrote in her majority opinion in Air France v. Saks: “In determining precisely [how to interpret the Warsaw Convention], we ‘find the opinions of our sister signatories to be entitled to considerable weight.’”6 Justice O’Connor then considered the positions of French, Swiss, German, and British law on the subject in coming to her own conclusion. In Olympic Airways v. Husain, a later case that rested on interpretation of the Warsaw Convention, Justice O’Connor joined Justice Antonin Scalia in a dissenting opinion in which they criticized the majority for its failure to address how the courts of U.S. treaty partners had addressed similar interpretive questions under the Convention.7 Justice O’Connor was eventually joined by most of her brethren in her view that it is appropriate to look to treaty partners’ understanding of a treaty in 8 deciding how to interpret that treaty. 5. Justice Sandra Day O’Connor, Remarks at the Southern Center for International Studies 1–2 (Oct. 28, 2003), available at http://www.southerncenter.org/ OConnor_transcript.pdf. 6. Air France v. Saks, 470 U.S. 392, 404 (1985) (citing Benjamin v. British European Airways, 572 F.2d 913, 919 (2d Cir. 1978)). 7. Olympic Airways v. Husain, 540 U.S. 644, 657–58 (2004) (Scalia, J., dissenting). 8. Justice Scalia remarked in a debate with Justice Breyer: I do not use foreign law in the interpretation of the United States Constitution. Now, I will use it in the interpretation of a treaty. In fact, in a recent case I dissented from the Court, including most of my brethren who like to use foreign law, because this treaty had bee[n] interpreted a certain way by ever foreign court of a country that was a signatory, and that way was reasonable, although not necessarily the interpretation I would have taken as an original matter. But I thought that the object of a treaty being to come up with a text that is the same for all the countries, we should defer to the views of other signatories, much as we defer to the views of agencies -- that is to say if it’s within ball park, if it’s a reasonable interpretation, though not necessarily the very best. Antonin Scalia, Justice, and Stephen Breyer, Justice, U.S. Assoc. of Constitutional Law Discussion: Constitutional Relevance of Foreign Court Decisions (Jan. 13, 2005), available at http://www.freerepublic.com/focus/news/1352357/posts. For a recent case where this view garnered the support of Justices Kennedy, Roberts, Alito, Scalia, Ginsburg, and Sotomayor, see Abbott v. Abbott, 130 S. Ct. 1983, 1993–94 (2010) (“This Court’s conclusion that ne exeat rights are rights of custody is further informed by the views of other contracting states. In interpreting any treaty, ‘[t]he opinions of our sister signatories . are entitled to considerable weight.’ The principle applies with special force here . .”) (citations omitted). 4 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J. This Article takes up Justice O’Connor’s invitation to look for clear agreement in the international community on the meaning and scope of shared treaty obligations. Specifically, we examine whether foreign and international bodies have applied human rights treaties to actions of the government of a ratifying state when it acts outside its own territory. Do the courts of our key treaty partners conclude that their governments are bound to observe the limits imposed in human rights treaties when acting outside their territory? Have the international tribunals and treaty bodies tasked with interpreting the treaties applied human rights obligations in similar circumstances? We aim to answer these questions and thereby offer a guide to U.S. policymakers and courts struggling with