The following statement was delivered
on December 12, 2007, by Steven Groves, Bernard and Barbara Lomas
Fellow at The Heritage Foundation's Margaret Thatcher Center for
Freedom, at the 6th Session of the United Nations Human Rights
Council in Geneva. It is a response to the "Report of the Special
Rapporteur on the Promotion and Protection of Human Rights and
Fundamental Freedoms while Countering Terrorism, Martin Scheinin,"
published on November 21, 2007.
Thank you, Mr. President, for the opportunity to participate in
this important dialogue concerning the intersection of human rights
and counterterrorism. The United States is committed to protecting
the civil liberties of its citizens and promoting human rights for
all people while fighting the global war on terrorism.
Article Two of the International Covenant on Civil and Political
Rights requires the United States to guarantee the rights of all
individuals "within its territory and subject to its jurisdiction."
The Special Rapporteur's report, however, construes Article Two as
having no territorial limitation.
The interpretation of Article Two is no mere legal technicality,
since the jurisdictional reach of the Covenant factors
significantly into the report's analysis of U.S. counterterrorism
policy and practices. It is therefore regrettable that the report
ignores both the plain language and the negotiating history of
Article Two. The plain language of Article Two declares that the
Covenant extends only to those persons who are both (1) within the
territory of a State Party and (2) subject to the State Party's
The language of Article Two was debated at length during
negotiations in 1950, where U.S. delegate Eleanor Roosevelt
maintained that the Covenant applied only to persons who were
within the territory of a State Party. Other delegates disagreed
with the U.S. position, contending instead that the Covenant should
have no territorial restrictions. A vote was held on that disputed
point, and the U.S. position prevailed.
Over 50 years later, in 2004, the Human Rights Committee adopted
General Comment No. 31, which purports to lift Article Two's
territorial restriction. In so doing, the Committee chose to ignore
the original intent of the Covenant's authors. It should also be
noted that the general comment process was never meant to serve as
a vehicle for altering the substance or terms of the Covenant, but
rather was intended to permit the Committee to give technical
advice to States regarding reporting requirements.
While it is proper for the Special Rapporteur to rely upon the
Covenant in rendering his opinion regarding activities wholly
within U.S. territory, it is not proper to rely upon the Covenant
to address U.S. detention policy in Cuba or U.S. counterterrorism
practices in other parts of the world.
An interpretation of the jurisdictional reach of Article Two
that is contradicted by both the plain language and the negotiating
history of the Covenant complicates U.S. cooperation on these
important issues. Ignoring the original intent of the authors of
the Covenant only serves to call into question the substance of the
The Special Rapporteur should instead focus his efforts on
constructively engaging the United States with reference only to
those activities occurring within U.S. territory, in accordance
with Article Two of the Covenant.
Thank you, Mr. President.
Steven Groves is Bernard
and Barbara Lomas Fellow in the Margaret Thatcher Center for
Freedom, a division of the Kathryn and Shelby Cullom Davis
Institute for International Studies, at The Heritage