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US says war on terror not governed by UN rights treaty

[JURIST] Making the first US appearance before the UN Human Rights Committee [committee materials] in more than a decade, American officials on Monday defended their position that the International Covenant on Civil and Political Rights [text] does not govern many aspects of the war on terror. In a media roundtable [transcript] in conjunction with a committee hearing in Geneva, Mark Lagon [official profile], deputy assistant secretary of state for international organization affairs, said that US operations in Iraq and Afghanistan and practices such as extraordinary rendition [JURIST news archive] "lie beyond the scope of the treaty" because they either involve US conduct outside American territory or are governed by the law of war rather than human rights law. Lagon said that the US would nevertheless answer committee members' questions about those matters "as a matter of openness to the international community." In his opening statement [text] to the committee, Matthew Waxman [official profile], principal deputy director for policy planning at the State Department and the leader of the American delegation in Geneva, said:

it is the long-standing view of the United States that the Covenant by its very terms does not apply outside of the territory of a State Party. We are aware of the views of members of this Committee regarding the extraterritorial application of the Covenant, including the Committee's General Comment No. 31. While we have great respect for the Committee’s views, as the Committee is aware, the United States has a principled and long-held view that the Covenant applies only to a State Party's territory. It is the long-standing view of my government that applying the basic rules for the interpretation of treaties described in the Vienna Convention on the Law of Treaties leads to the conclusion that the language in Article 2, Paragraph 1, establishes that States Parties are required to respect and ensure the rights in the Covenant only to individuals who are BOTH within the territory of a State Party and subject to its jurisdiction. ...

Accordingly, to those who suggest that the U.S. interpretation regarding the scope of the treaty is new or novel, I must say that this is simply not fair or correct. This has been the U.S. position for more than 55 years.

Although we explained the U.S. interpretation of the territorial scope of the Covenant in great detail in Annex 1 of the report, I have reiterated and expanded upon it here for two reasons. First, because the United States is committed to upholding its Covenant obligations, it is important that the United States state when those obligations apply. Let me be clear: while the U.S. obligations under the Covenant do not apply outside of U.S. territory, it is important to recall that there is a body of both domestic and international law that protects individuals outside U.S. territory. Furthermore, as a matter of domestic U.S. constitutional law, U.S. citizens enjoy a wide range of constitutional protections outside of U.S. territory.

Second, clarifying our position on the scope of the Covenant, we hope, is useful in explaining our responses to this Committee's questions relating to military operations outside the territory of the United States. In keeping with the approach we took in drafting the U.S. report, and in light of our principled and longstanding view on the scope and application of U.S. obligations under the Covenant, the United States has not included in its formal response to the Committee's written questions information regarding activities outside of its territory or governed by the law of armed conflict.
Waxman also told the press that US officials "are constantly reviewing our policies and practices to ensure their compliance with the law" and that sometimes "course corrections" are necessary. Waxman, was responding to a question about whether this month's US decision to apply the Geneva Conventions to detainees in US military custody [JURIST report] constituted a reversal in policy - a characterization the White House has disputed.

Under Article 40 of the International Covenant on Civil and Political Rights, signatories must appear before the Human Rights Committee regularly. Although most countries face the committee every four years or so, the US had not done so since 1995, and its most recent report to the committee [PDF text] was seven years overdue. The committee is expected to issue nonbinding recommendations to the US by the end of the month. The US Mission to the UN in Geneva has additional materials including the written responses [PDF text] to committee questions [PDF text]. Reuters has more. AFP has additional coverage.

As part of the committee's review of US compliance with the ICCPR, several NGOs have submitted comments on the US rights record [complete list], including the American Civil Liberties Union [DOC text],the Center for Constitutional Rights [PDF text], Human Rights First [PDF text] and Human Rights Watch [PDF text]. In addition, a coalition of 142 US nonprofit advocacy groups and 32 individuals has filed a report [summary, PDF] that purports to document widespread human rights abuses in the US. The "shadow report" serves as a rebuttal to the official US report [text], which was filed late last October [JURIST report]. The 465-page shadow report alleges US human rights violations in the area of immigration, where immigrants face abuse, refugees are not adequately protected, and migrant workers face due process violations; and in criminal justice, where children are routinely sentenced as adults, minorities and women are discriminated against, and prisoners are refused access to courts. The report also alleges racially discriminatory practices in the aftermath of the Hurricane Katrina disaster [JURIST news archive] in voting and access to food and shelter, and the domestic use of torture where the US failed to prosecute a Chicago police officer for alleged torture tactics [HRW report; JURIST report].

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