Continuing our dialogue about whether the ICCPR places limits on electronic surveillance by a state outside of its own territory, Ryan Goodman has posted a lengthy response to my response to his post about my PCLOB testimony last month. His arguments deserve a longer response (and I hope some other Lawfare contributors may also respond), but I will have to limit myself to two points:
First, Ryan argues that in addition to the possible application of Article 17 of the ICCPR, an argument can be made that the United States has “long accepted the extraterritorial application of the right to privacy as a matter of customary international law….” (Emphasis added.) He cites the military’s 2013 Operational Law Handbook for this proposition. I would be flabbergasted if any U.S. Government lawyer who worked on the Operational Law Handbook believes that there is a customary international law principle -- meaning a principle so universally accepted that all states observe it out of a sense of binding legal obligation -- that places limits on electronic surveillance by the U.S. Government (or any other government) of foreign nationals outside its own territory. And I am certainly not aware that all states, or almost all states, acknowledge and act in accordance with any such alleged customary international law obligation.
Second, Ryan disagrees with my argument that it is counterproductive for human rights advocates (both domestically and internationally) to urge the USG adopt a new interpretation of the ICCPR at a time when they (and I) hope the Senate will approve the UN Convention on Persons with Disabilities. If I understand Ryan's argument correctly, it is that my concern is misplaced because when the Senate gave its advice and consent to the ICCPR in 1991, it actually understood -- notwithstanding the plain words of Article 2 of the ICCPR -- that it was consenting to extraterritorial obligations for the United States. Ryan claims that “The Senators contemplating ratification of the Disabilities Convention should be assured that the US generally knew what it was getting into when it joined the ICCPR.” I find it impossible to believe that the Senate in 1991 understood that it was giving its advice and consent to such broad obligations (including extraterritorial obligations for the U.S. military and NSA). Moreover, if the Senate thought that it was agreeing to extraterritorial obligations, then it would clearly have disagreed with the statement made by then Legal Adviser Conrad Harper to the Human Rights Committee only four years later (in 1995) that the United States interpreted the ICCPR to apply only within a Party’s territory. The Senate and the President had agreed only a few years earlier to the so-called “Biden Condition”(adopted after former Legal Adviser Abraham Sofaer’s alleged “re-interpretation” of the ABM Treaty), which provided that the Executive branch may not, acting alone, adopt a new interpretation of a treaty. And, of course, after a careful interagency review, the Obama Administration has reaffirmed to the Human Rights Committee last month the longstanding USG position that the ICCPR does not apply outside the territory of the United States.
If the Senate is to approve new human rights treaties such as the Disabilities Convention, it is a good thing that the comments and decisions of the Human Rights Committee and other human rights treaty monitoring bodies are advisory only and not legally binding on states. I would be surprised if any U.S. human rights advocates would argue otherwise, because if they were to suggest that the views and decisions of treaty monitoring bodies are binding, they would infinitely complicate the ability of the Executive branch to persuade the Senate to agree to new human rights treaties; it would be impossible for the Senate to know what obligations it is agreeing to if those obligations would be constantly evolving according to the whims of the treaty monitoring bodies.