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Forum
Paper Title: Is the United States bound by the CCPR in relation to occupied countries? (full
text )*
Abstract of Forum Paper:
The US has ratified the International Covenant on Civil and Political Rights (ICCPR) and therefore is bound by it under international law. The question is whether this applies also to occupied territories, or other territories under the effective control of the US outside its proper territory. A further question will be whether other international law instruments will affect the answer to the first question.
The first question deals with the territorial aspect of jurisdiction: it asks whether the US is responsible, under the ICCPR, for its actions in occupied or assimilated territories. The second question deals with the effects of international humanitarian law and, more importantly in the present context, Security Council resolutions on the US obligations under the ICCPR in occupied territories. Concerning the latter, it may best be formulated in this way: is it a valid defense against the reproach of having comitted a human rights violation in occupied or assimilated territory for a State party of the ICCPR to claim that this violation was authorized by a Security Council resolution (such an authorization generally taking the form of an unrestricted authorization of „all necessary measures“)? If one takes the view that, although the authorization of an act may be inconsistent with the obligation not to commit that act, such an authorization can be treated differently, under Article 103 of the UN Charter, from a treaty obligation to perform that act, the answer clearly is „no“.
But a different interpretation of this provision, equating such an authorization with a treaty obligation, is well arguable. Under such an interpretation, in principle, the answer must be „yes“. But this „yes“ may be qualified. It is conceivable that the States parties to the ICCPR have to respect the international law duty inherent in every treaty not to frustrate the objects of that treaty. The question therefore is whether being instrumental in the adoption of a Security Council resolution unrestrictedly authorizing security forces in the territory of their deployment to take „all necessary measures“ can be seen as a frustration of the objects of the ICCPR.
This question will be answered in the affirmative. While this will not affect, in principle, the authority and the effects of a Security Council resolution voted regardless, the general international law principle that no State must profit from its own wrongdoing may prevent a State from relying on a Security Council resolution in defense against the reproach of having infringed the ICCPR in cases in which it was itself instrumental in bringing about that resolution and was thereby violating the ICCPR. Indeed, this principle, being an emanation of the general international law principle of good faith, is a principle of fundamental importance to the international legal system that must be taken to influence the interpretation of Article 103 of the Charter exactly in that way.
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