by Beth Van Schaack / Jurist / June 22, 2008
The central question facing the Supreme Court in Boumediene was: to what extent does the privilege of the writ of habeas corpus extend to foreign nationals detained within the unique jurisdictional circumstances of Guantánamo? One key factor underlying the Court’s ruling in Boumediene that petitioners are entitled to enjoy the privilege of habeas corpus was the degree of control exercised by the United States over Guantánamo.
The Court determined that although “ultimate sovereignty” over Guantánamo continues to reside in Cuba, the United States exercises “complete jurisdiction and control” (Slip Op. 23 & 25). This control is “absolute” and “indefinite” (Slip Op. 38), such that Guantánamo is within the “constant jurisdiction” of the Untied States (Slip Op. 39). It was also dispositive that no other law applies on Guantánamo: “[n]o Cuban court has jurisdiction to hear these petitioners’ claims, and no law other than the laws of the United States applies at the naval station (Slip Op. 21). Indeed, the Court was confident that an order from a federal court would be obeyed at Guantánamo. In so holding, the Court rejected the Government’s contention that “de jure sovereignty is the touchstone of habeas corpus jurisdiction” (Slip Op. 25).
In focusing not on “the formal legal status” of Guantánamo, but rather on “the objective degree of control the United States asserted over it” (Slip Op. 24), the Court’s reasoning mirrored the functional approach adopted by many human rights tribunals that have addressed similar questions of the extraterritorial application of their constitutive treaties. In particular, two cases against Turkey before the European Court of Human Rights (ECHR) (Loizidou v. Turkey (Preliminary Objections, Application 15318/89, Mar. 23, 1995) and Issa v. Turkey (Application 31821/96, Nov. 16, 2004)), presented the question of whether petitioners who were injured outside of Turkish territory had standing to invoke the protections of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). Article 1 of this treaty mandates that state parties are to “secure to everyone within their jurisdiction the rights and freedoms” set forth within the Convention (emphasis mine).
In both cases, the ECHR ruled that state responsibility could be incurred in situations in which Turkey exercised “effective control” over areas outside its national territory (in Northern Cyprus and Northern Iraq). The ECHR emphasized that the obligation to secure the Convention’s rights and freedoms is not restricted to the respondent state’s national territory (Loizidou ¶62) but rather extends to territory in which Turkish forces directly, or through a local administration, exercised effective control over the area as a result of military action (lawful or unlawful) (Id. ¶62). In Issa, the ECHR extended the reach of the Convention even farther when it ruled that “detailed control over the policies and the authorities in the area” was not necessary to engage state responsibility; rather, it may be enough that the state exercised “even overall control” over the area (Issa ¶70), albeit temporarily (¶74), or that the victims were “under the State’s authority and control through its agents operating – whether lawfully or unlawfully – in” the other state (¶71). (As we know from the Tadi? case, the overall control test is a less exacting one than the effective control test articulated in Nicaragua v. United States.) The ECHR asserted that Article 1 must be interpreted to prohibit a state from perpetrating violations in another state that it could not perpetrate on its own territory (¶71). In Loizidou, the ECHR hinted that part of its rationale stemmed from the fact that Cyprus, although a Contracting State, was incapable of securing the Convention rights and freedoms in the particular territory because of the exclusive control exercised by Turkey, which would have left a vacuum in regional human rights protection within Europe – the espace juridique of the Convention (¶80). This consideration – that the Convention would have otherwise applied in Cyprus – was not present in the N. Iraq case.
The International Covenant on Civil & Political Rights, a universal human rights treaty to which the United States is a party, states at Article 2(1) that the Covenant applies to “all individuals within its territory and subject to its jurisdiction.” The Human Rights Committee (HRC), charged with the interpretation and enforcement of the Covenant, has taken a progressive and teleological approach to the interpretation of this provision. In Burgos/Delia Saldias de Lopez v. Uruguay (Communication No. 52/1979 (July 29, 1981), U.N. Doc. CCPR/C/OP/1 (1984)), the HRC found Uruguay responsible for the abduction and mistreatment of a Uruguayan citizen who had sought refuge in Argentina. The Committee reasoned that Article 2(1) encompasses actions that state agents commit upon the territory of another state (¶12.3) and that the concept of “jurisdiction” relates not to the place where the violation occurred, “but rather to the relationship between the individual and the State” with respect to the alleged violation, wherever it occurred (¶12.2). Lest this opinion be interpreted to turn on the fact of the Uruguayan nationality of the petitioner, the HRC subsequently clarified in a General Comment (No. 31) that the duties to respect and ensure the rights set forth in the Covenant extend to all persons “within the power or effective control” of state parties and their agents, even if the individuals are not situated within the territory of the state party (¶10). By this interpretation, Article 2(1) is addressed to two different classes of individual: those within the territory of the state party and those within the jurisdiction of the state party. Notwithstanding these authoritative interpretations of this provision, the U.S. government has consistently argued that Article 2(1) cannot be applied in the disjunctive (territory or jurisdiction), because it is formulated in the conjunctive (territory and jurisdiction). This reading, however, renders the jurisdiction clause superfluous, because anyone in the territory of the state would be automatically within its jurisdiction.
With the exception of a short foray into the multifaceted nature of state sovereignty, the Boumediene, opinion is entirely devoid of any reference to international law as the questions presented were fully able to be resolved through a determination of the constitutional reach of the privilege of habeas corpus. Nonetheless, there are openings in the Court’s opinion where the universal human right to judicial review might have entered the Court’s consideration. In particular, the Court eschewed a purely originalist or historical approach to understanding the contemporary reach of habeas rights by noting the potential for the protections of the Suspension Clause to expand along with post-1789 developments (Slip Op. 15-16). The codification of rights to habeas corpus and its equivalents (e.g., amparo) in the omnibus human rights treaties represents one important modern development that provides international law fortification to the Court’s ruling.
Although unacknowledged, the Boumediene opinion reveals a striking degree of doctrinal convergence between human rights and U.S. Constitutional jurisprudence. As every first year law student knows, jurisdiction means power. When a state’s power extends beyond its territorial borders, as is inevitable in our globalizing world, it brings certain rights and obligations in its wake. In Boumediene, the Court joined the human rights tribunals in concluding that states cannot escape these rights and obligations simply by acting extraterritorially.”
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Beth Van Schaack is an Associate Professor of Law, Santa Clara University School of Law