For 100 years the US has held Guantanamo Bay on lease from the Republic of Cuba. Detainees are now being held there in tiny cells without charge, without being allowed to meet their families or lawyers and without access to any tribunal or trial.
In March this year some of their family members brought proceedings, asking the US federal courts to review the legal basis for their relatives’ detention. The Court of Appeals for the DC Circuit found that the families had no right to “invoke the jurisdiction of the courts to test the constitutionality or the legality of the restraints on liberty”, because they were not being held on US “sovereign” territory.
The effect of this decision, unless it is overturned by the Supreme Court, is that the prisoners have been deprived of all constitutional protection, including even minimal due process rights, because the technical legal title to Guantanamo rests with Cuba, even though the US has complete dominion and control over the area.
Therefore, since human rights protection depends entirely on where prisoners are held, the executive can manipulate the boundaries of judicial authority to avoid court review of governmental actions simply by holding prisoners outside US territory.
Would the position be different if the US were party to the European Convention on Human Rights (ECHR)? Could the UK, whose public bodies are bound by the Human Rights Act (HRA), avoid responsibility for acts done with disregard for fundamental human rights standards as long as they are done outside the technical limits of UK sovereignty?
The position under the ECHR is that contracting parties are required by Article 1 to secure ECHR rights to “everyone within their jurisdiction”. This has been construed by the Strasbourg Court as meaning that the ECHR’s limits are essentially “territorial”, but can also extend exceptionally to acts “performed or producing effects” outside a state’s territory where the state exercises “effective control of an area outside its national territory”, for example in a case involving its diplomatic or consular agents abroad.
Accordingly, the Bankovic v Belgium decision in 2001 (concerning the deaths relating from the Nato bombings of the Radio-Television of Serbia buildings in the Former Republic of Yugoslavia) held that the ECHR did not bind the states to their actions, since they had neither territorial nor effective control of the area.
In Ocalan v Turkey (an admissibility decision in March this year, concerning the arrest of the Kurdish leader Abdullah Ocalan by Turkish officials on Kenyan soil), the court held that Ocalan was under effective Turkish control when he was handed over to the Turkish authorities, even though Turkey was exercising its authority outside its territory.
It seems to be inconceivable that the US does not have “effective control” over Guantanamo Bay, even if it does not have territorial title. Were the US party to the ECHR, it would be accountable to the detainees and their families for breaches of ECHR rights, including the right to liberty and security and to a fair trial.
However, the story is not as black and white as all that.
There are signs that the UK courts are looking restrictively at the application of ECHR rights abroad. In May this year, the Court of Appeal in the European Roma Rights Center case considered whether the UK could avoid the ECHR’s prohibition on discrimination in asylum decisions by stationing immigration officers outside its territory in Prague Airport, thereby ‘prescreening’ asylum seekers before they boarded the planes.
The Court of Appeal held that: “In an ideal world there would no doubt be provision for states to facilitate the escape of persecuted minorities by allowing entry to their own country. I am satisfied, however, that on no view of the convention is this within its scope.” Unless the House of Lords disagrees, it looks as if UK officials can interfere with fundamental rights without review by our courts, as long as they do so away from English soil.
Does the HRA itself make any difference? Article 1, the territorial limit on the jurisdiction of the ECHR, was not incorporated into the HRA because the act’s obligations under Section 6 are imposed on public authorities rather than upon contracting states. The Court of Appeal has observed (in (2002)) that the English courts had always assumed that the HRA was subject to the same territorial limitations as those contained in the ECHR.
This has been tested in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs (2003), a case concerning directions issued by the Secretary of State under a South Georgia order that required the commissioner in South Georgia to tell the director not to grant fishing licences to UK vessels.
This raised the interesting question as to whether the Secretary of State in London, acting under his powers to issue directions in respect of South Georgia (one of the UK’s overseas territories, with a handful of inhabitants and a lucrative fishing industry), was bound by the HRA to respect ECHR rights when so doing and to pay damages for a violation. Again, could the UK avoid respecting human rights (in this case property rights) by acting outside the territorial limits of the UK?
Mr Justice Collins held that it could: Article Protocol 1 of the ECHR did not apply to South Georgia because the UK had not made express provision for it to apply. The HRA could not make any difference because its broad obligation on all public authorities could not have the effect of applying more broadly than the territorial limits of the ECHR itself.
This may be right, although it is by no means obvious from the HRA itself. Judge Collins also held that the Secretary of State was acting “in right of” South Georgia rather than “in right of” the UK when making his directions. It is not clear how far this notion can extend – where a UK decision-maker makes a decision in the UK for reasons rooted in the UK, does it cease to be made ‘in right of’ the UK where effects are felt abroad?
Guantanamo Bay, Roma Rights and Quark Fishing are all currently on appeal and there are strong arguments for each of them being overturned.
The Strasbourg court has said it is aware of the need to avoid “a regrettable vacuum in the convention system of human rights protection” (Bankovic paragraph 80), but that “the convention was not designed to be applied throughout the world, even in respect of the conduct of contracting states”.
These are difficult questions and the dividing line is certainly not an easy one to draw. However, the English courts must on all accounts avoid the US approach, which has so far allowed the powerful executive to avoid the scrutiny of the courts when it is acting abroad.
Richard Gordon QC and Maya Lester are barristers at Brick Court Chambers