Jurisdiction and power: The intersection of human rights law & the law of non-international armed conflict in an extraterritorial context

Israel Law Review

Volumn 40, Issue 2, 2007, Pages 396-452

  Cerone, John ^a  

^a Center for International Law Policy   (United Kingdom)

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EID: 84954129893     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S002122370001339X     Document Type: Article

References (161)

1. Human rights law and humanitarian law (i.e. the law of armed conflict) are separate bodies of international law with distinct modes of application. While human rights law is primarily concerned with the way a state treats those within its domain, “[humanitarian law aims at placing restraints on the conduct of warfare so as to diminish its effects on the victims of the hostilities.” ICTY: Prosecutor v. Kunarac, Kovac, and Vukovic, Case no. IT-96–23-T and IT-96–23/1, Trial Chamber II, Judgment, (February 22, 2001), at para. 470. Other distinctions between human rights and humanitarian law include the subjects of obligations, the institutions competent to determine violations, the period of application, the scope of beneficiaries, the locus of application, the range of rights protected, and the sources of obligations.
2. International Covenant on Civil and Political Rights, U.N. GAOR Supp. No. 16, at 52, UN Doc. A/6316 (1966), art. 4. While states may derogate from certain human rights obligations when faced with a public emergency, strict limitations apply.
3. Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, 1996 I.C.J. 226 (July 8), at, para. 25 [hereinafter Nuclear Weapons case].
4. See Coard et al. v. the United States, Case 10.951, Inter-Am. C.H.R., Report No. 109/99, OEA/ser, I./R./109/99 (1999), at para. 39. Given the pervasive phenomenon of cross-fertilization among international fora, particularly among human rights fora, it is not uncommon to cite jurisprudence from regional fora as precedent for universal regimes. Regional practice is also particularly useful since the regional institutions, the combined membership of which comprises a large proportion of UN member states, tend to be more active, and thus have broader bases of experience within their spheres of competence.
5. Concluding Observation of the Human Rights Committee, Israel, ¶ 11, CCPR/CO/78/ISR (Aug. 21, 2003).
6. See SC Res. 1265, ¶ 4, UN Doc. S/RES/1265 (Sept. 17, 1999).
7. Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004
8. I.C.J. 163, (July 9), at para. 106 [hereinafter Wall opinion]
9. Id. at para. 106.
10. See Coard v. the United States, Id.
11. See General Comment No. 31, Id, at para. 11.
12. Nuclear Weapons case, Id, at para. 25.
13. Juan Carlos Abella v. Argentina, Case 11.137, Inter-Am. C.H.R., Report No. 55/97, OEA/ser.L/V/II.95 doc. 7 rev. at 271 (1997), at para. 160.
14. However, the ICTY has held that the basic rules of these Conventions have since evolved through customary law to apply to non-international conflicts as well. Prosecutor v. Tadic, Case No. IT-94–1, ICTY Appeal Decision (Oct. 2, 1995), at para. 127 [hereinafter Tadic Appeal Decision].
15. See, e.g., Hague Convention (IV) Respecting the Laws and Customs of War on Land, art. 2, Oct. 18, 1907, 36 Stat. 2277
16. T.S. 539 [hereinafter Hague Convention IV]. (“The provisions contained in the Regulations referred to in Article 1, as well as in the present Convention, do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.”)
17. Geneva Convention relative to the Treatment of Prisoners of War art. 3, Aug. 12, 949, 6 U.S.T. 3316
18. Tadic Appeal Decision, U.N.T.S., at para. 70.
19. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27), at para. 218
20. citing Corfu Channel, Merits, ICJ Reports 1949, at 22. Although the Court ultimately refrained from characterizing the conflict in which the US was engaged in Nicaragua, it held that Common Article 3 would apply in any event as a minimum yardstick for all armed conflicts. It thus clearly took the position that Common Article 3 applies beyond a state's territory.
21. Tadic Appeal Decision, ICJ Reports at para. 102.
22. Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).
23. Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).
24. It reserved judgment on whether other provisions of the Conventions were applicable. By taking this position, the Court essentially also adopted the position taken by the International Court of Justice that Common Article 3 is a “minimum yardstick” for all armed conflicts, international or non-international. See Nicaragua v. USA, F.3d, at para. 218.
25. Hamdan v. Rumsfeld, F.3d, at the opinion of Judge Stevens, para. 4.
26. Hague Convention IV, F.3d, Annex, Article 4.
27. Id. at Article 3.
28. See, e.g., Geneva Convention (IV), Article 4, Id.
29. Rome Statute of the International Criminal Court, 1 July 2002, 2187 U.N.T.S. 3. See Article 8.
30. This included violations perpetrated against foreign nationals abroad. See M. Whiteman, Damages in International Law (1937).
31. ICCPR, Damages in International Law, at Article 2. While the preambles of the ICCPR and ICESR both speak of duties of individuals, no normative content for this language has been determined. The idea of duties under human rights law is generally employed in the context of permissible restrictions on rights made through, e.g., claw-back clauses. See Article 19(3), ICCPR. Finally, although the African Charter on Human and Peoples Rights (ACHPR) sets forth duties in its operative text, these provisions have never been used by the African Commission to find individuals responsible for breaches of the Charter. Indeed, there are no procedures for alleging a breach of these duties.
32. ACHPR, Adopted on June 27, 1981, OAU Doc. CAB/LEG/67/3 rev.5, reproduced in 21 I.L.M 58 and came into force on October 21, 1986.
33. Such conduct may consist of an action or omission. See cf. ILC Articles on Responsibility of States for Internationally Wrongful Acts, GA Res. 86/83, Annex, UN Doc. A/RES/86/83 (Dec. 12, 2001) at art. 2. The rules of attribution set forth in the Articles are declaratory of existing customary international law.
34. See, e.g., General Comment No. 31, GA Res.
35. See also Human Rights Committee General Comments 6,10,16,17,18,20,21,27,28, and 31. Human Rights Committee General Comments are available at http://www.ohchr.org/english/bodies/hrc/comments.htm (last visited August 12, 2007).
36. General Comment 31, GA Res., at para. 8.
37. See American Convention on Human Rights American Convention on Human Rights, art. 1(1), July 18, 1978, O.A.S.T.S. No. 36
38. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 1, Sept. 3,1953,213 U.N.T.S. 222 [hereinafter ECHR]. Article 1 of the European Convention requires the High Contracting Parties to “secure” the rights contained in the Convention. The European Court has interpreted article one to entail a scope of obligation similar to that encompassed by the phrase “to respect and to ensure” as interpreted by the Human Rights Committee. The African Commission on Human and Peoples Rights has gone farther, interpreting article 1 of the African Charter, which obliges states to “recognize” rights and to “adopt… measures to give effect to them,” to entail the obligations to respect, protect, promote, and fulfil the rights contained in the Charter. See Decision Regarding Communication 155/96 (Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria). Case No. ACHPR/COMM/A044/1, printed in Fifteenth Annual Activity Report of the African commission on Human and People's Rights 2001 available at http://www.achpr.org/english/activity_reports/activity15_en.pdf.
39. Id. Velásquez-Rodriguez, Case,Inter-AmCt.H.R.(Ser.C)No.4(1988)
40. Applic.l5599/94,Av.U.K.,report of 18 Sep. 1997
41. Eur. Ct. H.R.: Kilic v. Turkey, Appl. No. 22492/93 (given March 28,2000), available at http://cmiskp.echr.coe.int/tkpl97/view.asp?item=l&portal=hbkm&action=html&highlight=22492/93&sessionid=1757379&skin=hudoc-en (last visited August 13, 2007)
42. Nelson E. Jimenez v. Colombia, Inter-Am. C.H.R., Report No. 4/97, OEA/Ser.L/V/II.95 Doc. 7 rev. at 93 (1997), at para. 7.2, 9. As stated by the Velásquez-Rodriguez Court, “An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.” Velásquez-Rodriguez case, at para. 172. The “due diligence” standard “has been generally accepted as a measure of evaluating a State's responsibility for violation of human rights by private actors.”
43. Preliminary report submitted by the Special Rapporteur on violence against women, its causes and consequences, Radhika Coomaraswamy, ¶ 103, UN Doc. E/CN.4/1995/42
44. citing Moore, Int. Arb. 495 (1872). Application of the “due diligence” standard can be seen in the reports of UN special rapporteurs, UN special representatives, and the Secretary-General; comments, views, and concluding observations of human rights treaty bodies; reports on expert group meetings; resolutions of the Commission on Human Rights and the Economic and Social Council; Declarations by the General Assembly, and the writings of publicists.
45. See John Cerone, The Human Rights Framework Applicable to Trafficking in Persons and its Incorporation into UNMIK Regulation 2001/4, 7 Int'l Peacekeeping.
46. Article 2(1) ICCPR, Int'l Peacekeeping
47. Article 1 ECHR, Int'l Peacekeeping
48. Article 1 ACHR, Int'l Peacekeeping. While Article 2 of the ICCPR refers to all individuals within a State's territory and subject to its jurisdiction, the Human Rights Committee has interpreted these to be independent grounds for application of the Covenant.
49. See, e.g., Burgos/Delia Saldias de Lopez v. Uruguay, Communication No. 52/1979 (29 July 1981)
50. UN Doc. CCPR/C/OP/1, at 88 (1984).
51. See, e.g., Concluding Observations of the Human Rights Committee: Israel. ¶ 11, UN Doc. CCPR/CO/78/ISR, (Aug. 21, 2003)
52. Human Rights Committee, Comments on United States of America, ¶ 19, UN Doc. CCPR/C/79/Add 50 (1995)
53. Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Iran (Islamic Republic of Iran), ¶ 63, UN Doc. CCPR/C/SR.1253,(July 30, 1993).
54. Burgos/Lopez v. Uruguay, UN Doc. CCPR/C/SR.1253, at para. 12.3.
55. See also John Cerone, Minding the Gap: Outlining KFOR Accountability in Post-Conflict Kosovo, 12 Eur. J. Int'l L. 469 (June 2001). In Burgos/Lopez v. Uruguay, the Committee held that Uruguay violated its obligations under the Covenant when its security forces abducted and tortured a Uruguayan citizen then living in Argentina. Following the command of Article 5(1) that “[n]othing in the present Covenant may be interpreted as implying … any right to engage in any activity … aimed at the destruction of any of the rights and freedoms recognized herein,” the Committee reasoned that “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.”
56. General Comment No. 31, Eur. J. Int'l L., at para. 10.
57. Observations on Israel, Eur. J. Int'l L.
58. Wall opinion, Eur. J. Int'l L., at para. 111.
59. It should be noted, however, that the International Covenant on Economic, Social and Cultural Rights (1976), 993 U.N.T.S. 3 [hereinafter ICESCR] imposes an obligation upon states parties to take steps, “individually and through international assistance and co-operation,” toward the progressive realization of the rights contained in the Covenant. To the extent this implies an obligation on states parties to work jointly toward realization of the Covenant rights for all people (or at least all those individuals within States Parties to the Covenant), the ICESCR may incorporate an element of extraterritoriality.
60. Id. at para. 113.
61. Given the similarity between Article 2 of the CROC and Article 2 of the ICCPR, it may be surmised that the Court applied the same standard to both. It should be noted, however, that the CROC contains economic and social rights as well as civil and political rights. See infra.
62. Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.
63. Case Concerning Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 I.C.J. 116 (Dec. 19), at para. 119 [hereinafter DRC v. Uganda).
64. Id. at para. 166.
65. Id. at para. 178.
66. Id. at para. 205.
67. Id. at 211.
68. Id. at 216.
69. Id. at 217.
70. Id. at 220.
71. This would not likely apply to suppression treaties such as the Convention Against Torture, 10 Dec. 1984, 1465 U.N.T.S. 85 [hereinafter CAT] to the extent such treaties could fall within the category of “international human rights instruments,” due to the different nature and mode of operation of such treaties. The scope limitation in CAT serves a different function and different parts of that treaty are subject to different scope limitations.
72. Id. at para. 216.
73. Although the present analysis at times refers to “extraterritorial conduct,” the focus of the analysis is on a state's conduct in relation to individuals outside the state's territory. It may be that a state's conduct occurring on its own territory is alleged to infringe the rights of those situated outside of that territory. See infra.
74. See, e.g., Coard et al. v. the United States U.N.T.S.
75. Alejandre v. Cuba, Case 11.589, Inter-Am. C.H.R., Report No. 86/99, OEA/Ser.L/V/II.106 Doc. 3 rev. en 586 (1999); Detainees in Guantanamo Bay, Cuba
76. Request for Precautionary Measures, Inter-Am. C.H.R. (March 13, 2002).
77. Alejandre v. Cuba, Inter-Am. C.H.R.
78. Id. at para. 8
79. See infra.
80. Id. at para. 25.
81. However, the Inter-American Commission on Human Rights recently declined to communicate a petition alleging that conduct of US forces in Iraq violated Inter-American human rights law. The Commission did not provide reasons for rejecting the position, but it may have been due to the fact that the alleged violations occurred outside of the region. See John Cerone, The Application of Regional Human Rights Law Beyond Regional Frontiers: The Inter-American Commission on Human Rights and US Activities in Iraq, ASIL Insight, (Oct. 2005), available at http://www.asil.org/insights/2005/10/insights051025.html (last visited Aug. 12, 2007). The European Court has also grappled with the issue of regionality.
82. See John Cerone, Out of Bounds? Considering the Reach of International Human Rights Law, Working Paper No. 5, at 19 (2006), New York University School of Law Center for Human Rights and Global Justice [hereinafter Out of Bounds]
83. Cyprus v. Turkey, 2001-IV Eur. Ct. H.R. 1 (GC).
84. Banković v. Belgium, 2001-XII Eur. Ct. H.R. 333 (GC). As noted below, the jurisprudence of the European Court is presently in flux with regard to this issue. Recent cases seem to establish a lower standard.
85. W.M. v. Denmark, App. No. 17392/90, 73 Eur. H. R. Rep. 193, (1992).
86. Id. at para. 1.
87. See, e.g., Drozd and Janousek v. France and Spain, 240 Eur. Ct. H.R. (ser. A) at 1 (1992).
88. Loizidou v. Turkey 310 Eur. Ct. H.R. (ser. A)(1995)(Preliminary Objections)[hereinafter Loizidou (Preliminary Objections)].
89. Cyprus v. Turkey, Eur. Ct. H.R.
90. Id. at para. 77.
91. In adopting the effective overall control test and finding that it was therefore not necessary to determine whether Turkey actually exercised detailed control over the policies and actions of the authorities of the Turkish Republic of Northern Cyprus (TRNC), the ECHR seemed to adopt a lower standard for attribution than that employed by the ICJ in the Nicaragua case and set forth in Article 8 of the Articles on State Responsibility. Nicar. v. U.S., Eur. Ct. H.R.
92. This was expressly recognized by the ICTY Appeals Chamber in Tadic, in which it departed from the rule formulated by the ICJ for attribution of the conduct of organized, hierarchical groups. While the ICJ had held that the proper standard for attribution was “effective control” over the group, including direction and participation in the particular act to be attributed, id. para. 115, the ICTY found “overall control” to be sufficient and has not required direction or participation by the state in the specific conduct, Tadic Appeal Decision, Eur. Ct. H.R., at para. 120. In finding further that the state could be held responsible even for acts contrary to specific instructions, the ICTY Appeals Chamber noted that, generally speaking, “the whole body of international law on State responsibility is based on a realistic concept of accountability, which disregards legal formalities and aims at ensuring that States entrusting some functions to individuals or groups of individuals must answer for their actions, even when they act contrary to their directives.” Id. at para. 121. The Appeals Chamber also made clear that it was applying its interpretation of the rules of attribution under the Law of State Responsibility and was thus not relying on a lex specialis theory for its departure from the Nicaragua judgment.
93. Id. at para. 115
94. Banković v. Belgium, Eur. Ct. H.R.
95. Id. at para. 71. The Court here seems to refer here to two standards. The first—effective control of territory—seems to be a reiteration of the rule expressed in the northern Cyprus cases. The second seems intended to encompass a standard implicit in Drozd v. France, (Id). Had the conduct of the judges in that case been attributable to France or Spain, it is likely that the Court would have found the Convention to apply. Note however, that the Court in that case simply stated that the “responsibility [of Contracting States] can be involved because of acts of their authorities producing effects outside their own territory.” Similarly, in Loizidou (preliminary objections), Id, the Court reiterated that the “responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory,”
96. citing Drozd v. France. In Banković v. Belgium, Id, the Court recasts this principle in narrower terms.
97. Id. at para. 73.
98. See Issa v. Turkey, infra note 123, at para. 74.
99. Id. at para. 75.
100. The Court thus appeared to exclude conduct committed against the wishes of the territorial state, unless imposed through military occupation of the territory. This stands in stark contrast to the finding of the Human Rights Committee that the expressed scope of Article 2(1) “does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State, whether with the acquiescence of the Government of that State or in opposition to it.” Burgos/Lopez, Id, at para. 12.3.
101. Ilaşcu v. Moldova and Russia, 2004-VII Eur. Ct. H. R. 1030 (GC).
102. Id. at para. 312 (citations omitted).
103. Id at para. 313.
104. Id. at para. 322.
105. Id. at para. 331.
106. This, of course, is not an example of extraterritorial application, since the victims were within the territory of Moldova; however, it is relevant to the Court's jurisprudence on extraterritoriality, as will be discussed infra.
107. Id. at para. 376. Interestingly, the Court then rephrases its inquiry, stating that “the Court's task is to determine whether… the Russian Federation can be held responsible for the alleged violations.” Para. 377. The Court here blurs the issue of responsibility with the issues of attribution as well as the scope of the State's jurisdiction.
108. See infra.
109. Id. at para. 382.
110. Id. at para. 392. Here the Court seems to employ an even lower standard—“decisive influence” or dependence (“survives by virtue of)—for attribution. Given the Court's reference, earlier in its judgment, to the continuity of internationally wrongful acts, the Court may believe that applying a lower standard for attribution in this context is warranted. However, the rules referred to by the Court in its discussion of the continuity of internationally wrongful acts pre-suppose an initial breach. In this instance, the pre-ratification conduct of the Russian Federation cannot constitute a breach of the Convention. Thus, the standard for continuity of an existing violation is inapplicable.
111. Also, use of the phrase “survives by virtue of Russian support parallels language used by the Court in Cyprus v. Turkey, Id, in finding the conduct of the TRNC attributable to Turkey. However, in that case the finding of attribution was based primarily on Turkey's overall control of the territory of northern Cyprus.
112. laşcu v. Moldova and Russia, Id, at para. 393.
113. Id. at para. 394.
114. In so doing, the Court seems to have adopted a much lower standard than those set forth in Banković v. Belgium, Id.
115. Issa v. Turkey, 41 Eur. Ct. H.R. 27 (2004).
116. Id at para. 71.
117. It does, however, cite Commission cases, including W.M. v. Denmark, Eur. Ct. H.R.
118. This formulation is almost identical to that used by the Human Rights Committee in Burgos/Lopez, which the Court had criticized in Bankovic v. Belgium, Eur. Ct. H.R.
119. Operational Law Handbook, The Judge Advocate General's Legal Center and School ch. 3 (Maj. Derek I. Grimes, ed., 2005) [hereinafter JAG OLH], (“Human rights law established by treaty generally only binds the state in relation to its own residents; human rights law based on customary international law binds all states, in all circumstances.”) It should be noted, however, that the US rejects extraterritorial application of the ICCPR.
120. Banković v. Belgium, The Judge Advocate General's Legal Center and School
121. Wall opinion, The Judge Advocate General's Legal Center and School, at para. 112.
122. DRC v. Uganda, The Judge Advocate General's Legal Center and School, at para. 216.
123. W.M. v. Denmark, The Judge Advocate General's Legal Center and School, at para. 2.
124. Cyprus v. Turkey, The Judge Advocate General's Legal Center and School, at para. 77.
125. W.M. v. Denmark, The Judge Advocate General's Legal Center and School, at para. 1. (Emphasis added J.C.).
126. See, e.g., Al-Skeini v. Sec. of State for Defence [2005] EWCA 1609 (Civ), at para. 48 [hereinafter Al-Skeini (CA)]. This also seems to be the case with respect to customary human rights law. In general, customary law recognizes a narrower range of rights than that provided under treaty law. Further, the extraterritorial application of customary human rights law may be subject to limitations analogous to those applicable to human rights treaties.
127. For example, the US JAG OLH, EWCA notes that when the US carried out detention operations in Haiti as part of Operation
128. Id. at 49.
129. As the US rejects extraterritorial application of human rights treaties, the Handbook refers here solely to customary law. Id. at 48.
130. Banković v. Belgium, Id, at para. 75.
131. See, e.g., Ilaşcu v. Moldova and Russia, Id.
132. See Cerone, Out of Bounds?, Id at 19.
133. As indicated Id, customary international law may entail a lower level of obligation.
134. Wall opinion, Id, at para. 111.
135. ILC Articles, Id, at Article 2.
136. Wall opinion, Id, at para. 112.
137. Id. at para. 134.
138. DRC v. Uganda, Id, at para. 179.
139. Id. at 211. Similarly, in summarizing its findings of fact in para. 211, the Court enumerated acts of the UPDF as well as omissions (e.g., the UPDF troops “took no steps to put an end to such conflicts” and “did not take measures to ensure respect for human rights and international humanitarian law…”). However, the indicated omissions occurred in areas where Uganda was found to have been an occupying Power.
140. Alejandre v. Cuba, Id, at para. 25.
141. Banković v. Belgium, Id, at para. 70, interpreting its findings in Cyprus v. Turkey
142. Cyprus v. Turkey, Id, at para. 81
143. Id. at para. 346.
144. W.M. v. Denmark, Id, at para. 1.
145. Banković v. Belgium, Id, at para. 75.
146. Id. at para. 65.
147. Id. at para. 75.
148. Illaşcu v. Moldova and Russia, Id, at para. 333 (emphasis added J.C.). The Court seems to find that only positive obligations are applicable to Moldova in this context. However, it may be that the Court has implicitly determined that negative obligations may be applicable but are simply not implicated by Moldova's conduct.
149. See infra.
150. Id. at para. 352.
151. Id. at para. 351. Note, however, that this blurs the question of jurisdiction with that of responsibility, as discussed below.
152. The Court's confusion becomes complete in Ilaşcu v. Moldova and Russia, Id.
153. For a comprehensive analysis, see Cerone, Out of Bounds?, Id.
154. To the extent that acquiescence would constitute a breach of its obligations. See Id.
155. Issa v. Turkey, Id, at para. 71.
156. Similar reasoning is implicit in the jurisprudence of human rights mechanisms finding that the obligation to ensure rights against violations by private actors is bounded by a scope of reasonableness. For example, in the Velazquez-Rodriguez case, Id, the Inter-American Court of Human Rights noted that this obligation was not absolute; the standard is one of “due diligence.”
157. The Court also recognized that ‘[i]t is not possible to make a detailed list of all such measures, since they vary with the law and the conditions of each State Party’ (para. 175). In essence, the inquiry under the American Convention is whether the State party acting in good faith undertook steps that were reasonable in the circumstances. See also Ilaşcu v. Moldova and Russia, Id.
158. By not “dividing them up,” in the words of the Banković Court (Id).
159. Banković v. Belgium, id. at para. 75.
160. It could even be argued that this is the most reasonable interpretation of the text, rendering recourse to the travaux unnecessary. In any event, the travaux may be read consistently with the above proffered interpretation. While it has been argued persuasively that the drafting history demonstrates the drafters' intent that the ICCPR apply only within the territory of each State Party (Michael J. Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 Am. J. Int'lL. 124 (2005)), that is not the only reasonable reading of the travaux. The statements cited in support of exclusively territorial application demonstrate a concern about extraterritorial application of positive obligations. These statements generally refer to the obligation to ‘ensure’ rights, and cite the impracticability of “ensuring” rights outside of the state's territory. This preoccupation with the application of positive obligations is understandable in light of the fact that during the 1950 debate on inclusion of the word “territory,” the phrase “to respect” had not yet been introduced into the draft Covenant. The existing text used only the phrase “to ensure.” During the March 1950 session of the Commission on Human Rights, Eleanor Roosevelt, speaking as the US representative, recalled her delegation's proposal that article 2(1) be amended to read: “The High Contracting Parties undertake to guarantee to all persons residing on their territory and within their jurisdiction the rights defined in the present covenant.”
161. UN Doc. EICN.4ISR.193, at 13 (1950). As with the phrase “to ensure,” the phrase “to guarantee” includes a positive dimension. Thus, it could equally be said that the desire for exclusively territorial application was limited to the obligation ‘to ensure’ or ‘to guarantee,’ and was not intended to limit the obligation “to respect,” which was subsequently introduced into the draft Covenant.