One long-controversial issue relating to the use of economic and financial sanctions has been the human rights obligations owed by a sanctioning State to a target State’s civilian population. For long, opinion has been split: some believing that, thanks to the extra-territorial nature of economic sanctions, the sanctioning State owes no human rights obligations to those it targets, while others take the sensible position that the spirit of human rights treaties is upset if a State is permitted to do outside its territory what it would be prevented from doing within its territory.
I’ve written about this topic elsewhere and take the position that both the drafting history and the spirit of the two major human rights treaties (the ICCPR and ICESCR) suggest that a sanctioning State owes the same human rights obligations towards a target State’s population as it would to its own population, even though the State lacks traditional bases of jurisdiction. In other words, to make the real-life example, the United States and the European Union would each owe Iran’s civilian population the obligations bestowed upon it by the ICCPR, the ICESCR, and whatever customary human rights norms flow from those treaties’ ancestor, the UDHR. The US/EU could not escape the rights owed to Iran’s civilian population by claiming that it did not have territorial jurisdiction over the target population (as is the US wont). (These rights would include the right to life, the right to work, the right to an adequate standard of living, including adequate food and health; the right to physical and mental health, the right to education, etc.)
Thanks to the new UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions report on drones, this take has received added credence. That is because, not unlike the use of economic sanctions targeting a foreign State, the use of drones likewise implicates the question concerning the extra-territorial reach of human rights law. As the UN report admits:
“Drones enable a State to perform targeted killing without exercising effective control over territory and without having the individual in custody, however. Accordingly, it must be asked whether such targeting can result in violations of the right to life under the applicable [human rights] treaties.”
Reviewing the existing case law, as found in the International Court of Justice, the Inter-American Commission on Human Rights, and the European Court of Human Rights (not to mention the findings of the UN Human Rights Committee), the UN report concludes that “any positive action by a State, on its own territory or that of another State, must be carried out in compliance with its human rights obligations under all applicable rules of international law.” That is to say, the United States cannot escape the purview of human rights law by arguing that the jurisdictional scope of human rights treaties does not capture its drone strikes in Pakistan, Yemen, or Somalia. The fact is, by undertaking ‘positive action’ that indelibly affects the rights of persons targeted, the U.S. exhibits the kind of ‘effective control’ under which its human rights obligations are triggered.
The UN report does not mention it, but this view is totally consistent with the drafting history of the ICCPR. What confuses the issue is the precise language of ICCPR Article 2(1), which establishes the jurisdictional scope of the treaty:
“Each State-party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant…”
The plain-reading of Article 2(1) is that the jurisdictional predicate is two-fold: a State is bound to respect the rights contained within the Covenant provided a person is both ‘within its territory and subject to its jurisdiction.’ If one of these predicates to jurisdiction is absent in a specific case, a State would be freed from its human rights obligations under the ICCPR.
However, this plain-reading is anathema to the drafting history (i.e., to what the drafters of the ICCPR intended). In Manfred Nowak’s treatise on the ICCPR, he reviews this history, finding that the Covenant’s drafters were committed to creating a human rights instrument of broad application. As Nowak details, the language of Article 2(1) was actually a compromise between the United States and France, both of whom had problems with some of the earlier drafts of the treaties’ jurisdictional scope. The concern for each State was that State-parties not be held responsible “for violations of the Covenant by persons who are on their territory but not subject to their jurisdiction,” nor “for violations against persons over whom they have personal jurisdiction…, when such violations take place on foreign territory and are attributable to some other sovereign.” In both instances, the U.S. and France were worried about being held responsible for human rights violations over which they exercised little to no control. With this in mind, Article 2(1) was drafted in such a way as to mitigate the concern that States would be held liable for the violations of others.
But, as Nowak and others have pointed out, this compromise by no means excluded the possibility that a State be held liable for the injuries it itself causes – even if such injuries occur on the territory of a foreign sovereign. Thus, as Nowak notes, “[w]hen State parties…take actions on foreign territory that violate the rights of persons subject to their sovereign authority, it would be contrary to the purpose of the Covenant if they could not be held responsible.” Such liability would, in no way, supersede the concerns of the U.S. and France during Article 2(1)’s drafting. In fact, such liability would meet both parties’ concerns, as in the instance cited the culpable State would be both responsible and liable for the human rights violation.
Thus, the ICCPR’s travaux is critical to intelligent appreciation of the text of Article 2(1) and gives added weight to the UN Special Rapporteur’s argument that the U.S. might well owe those it targets via drones the obligations outlined in human rights treaties. In the same way, both provide an arsenal of argumentation for why the U.S. and European sanctions on Iran implicate serious human rights concerns, as Iran’s civilian population endures price shocks to food markets, increasing hardships procuring critical medicines, and sagging employment figures.
I’m a big believer that human rights advocates have paid too little attention to the critical harms exhaustive economic and financial sanctions impose on a target State’s civilian population (e.g., in Iran). I think part of this has to do with the lack of clarity concerning the substantive law applicable in the case of a particular sanctions regime. No doubt, this has to do, to a large extent, with the extra-territorial nature of sanctions regimes. That’s why the UN Special Rapporteur’s report on the substantive law attached to U.S. drone strikes should provide impetus for rights advocates to reconsider their general refusal to more closely interrogate sanctions regimes and to judge the legality of these regimes against the human rights yardstick. In this way, the UN report is important for more reasons than one.