Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or punishment (ratified in 1994).b. Domestic Law of Treaty Obligation. The following two doctrines of
treaty obligation explain why many of these human rights treaties are not
binding on U.S. forces operating outside the U.S.
(1)Extraterritoriality. Although the United States has ratified a number of
important human rights treaties, it has reduced the importance of these
treaties by stating that these regimes do not have extratemtorial
application. (The opposite view is espoused by other nations and a
number of well-recognized international law authorities).(a) Traditional presumption: human rights law is directed at regulating
the way nations treat their own population. Under this view, human
rights treaties do not apply extraterritorially unless the parties agree
to such application.(b) Scope articles. Many treaties include articles specifically
establishing the scope of application. For instance, article 2 of the
International Covenant of Civil and Political bghts states that the
treaty applies to "all individuals within [a party's] territory and
subject to its jurisdiction."(i) These provisions do not eliminate controversy, which turns on
the meaning of "subject to their jurisdiction."(ii) US. position is that this term does not include civilians in
areas outside the U.S. where our forces conduct MOOTW.
Many experts believe, however, this language extends
jurisdiction to such persons.(iii) This interpretation might dramatically alter the U.S. treaty
obligation during the course of overseas operations. (The U.S.
took no reservation, and made no understanding or declaration
in regard to this issue).(2)Non-Self-Executing (NSE) Treaties. The U.S. has made a written NSE
declaration during the ratification process, which it has appended to
each of these treaties (interestingly, the U.S. did not take a formal NSE
reservation to any of the treaties). This theoretically removes these