UN bodies insist: Human rights have extraterritorial effects

fronterasThe United States and the Vatican have recently been criticised by three UN committees for the very same reason: Because both States refuse to accept that their human rights obligations have effects beyond their national borders.

In February, the UN Committee on the Rights of the Child (CRC) demanded the Vatican to put an end to the impunity in relation to sex abuse and to remove immediately all clergy who are known or suspected child abusers (find CRC’s Concluding Observations here). In its defence, the Vatican representative argued that “priests are not functionaries of the Vatican”; they are “citizens of their own states, and they fall under the jurisdiction of their own country”. The CRC rightly responded applying the general principle of International Human Rights Law that says that States must respond for the human rights abuses committed wherever they exercise “effective control”, regardless of whether it is within or beyond national boundaries. The argument was reiterated by the Committee Against Torture last week (Concluding Observations):

State authorities or others acting in official capacity or under colour of law have an obligation to exercise due diligence to prevent violations of the Convention, including by non-State officials or private actors under their effective control, whenever they know or have reasonable grounds to believe that violations of the Convention are being committed.

The US delegation was told off by the Human Rights Committee. Legal memos of the State Department admit that the “best reading” of the International Covenant on Civil and Political Rights, ratified by the US in 1992, does “impose certain obligations on a State Party’s extraterritorial conduct”. However, the official position of the US Government remains the same: Human rights end at the water edge. In its Concluding Observations of April, the Committee recommended the US Government to:

Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of the object and purpose of the Covenant, and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances, as outlined, inter alia, in the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant.

The position is hardly new. It has been consistently followed by human rights bodies for many years and it has also been applied by the International Court of Justice, in the Wall case (2004) for example. One would expect the point to be well accepted by now, but the words of the Lopez Burgos case seem to be as necessary now as they were back in 1981:

It would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.


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