COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE AND DIVISIONAL COURT
The Hon. Mr Justice Richards
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE CARNWATH
| The Queen on the application of Abbasi & Anor.||Claimants|
|- and -|| |
|Secretary of State for Foreign and Commonwealth Affairs |
& Secretary of State for the Home Department
Professor C Greenwood QC; Mr Philip Sales (instructed by The Treasury Solicitor for the Defendants)
Hearing Dates: 10, 11 and 12 September 2002
Crown Copyright ©
|Mr Abbasi’s predicament||Paras. 3-8|
|The position according to the United States Government and the United States Courts||Paras. 9-17|
|Expressions of concern||Paras. 18-21|
|The claimants’ complaint||Para. 22|
|The relief sought||Paras. 23-25|
|The issues||Para. 26|
|The submissions||Para. 27|
|Is the legitimacy of an action taken by a foreign sovereign state justiciable?||Paras. 28-36|
|Is executive action in the conduct of foreign affairs justiciable?||Paras. 37-50|
|Is the legitimacy of executive action taken by a foreign state justiciable?||Paras. 51-57|
|Our view of Mr Abbasi’s predicament||Paras. 58-67|
|Is the conduct of the Secretary of State justiciable?||Paras. 68-106|
|Are the applicants entitled to relief in the present case?||Paras. 107-108|
This is the judgment of the Court to which all members have contributed.
Mr Abbasi's predicament
"In cases that come to us with a request for assistance, Foreign and Commonwealth Ministers and Her Majesty's diplomatic and consular officers have to make an informed and considered judgement about the most appropriate way in which the interests of the British national may be protected, including the nature, manner and timing of any diplomatic representations to the country concerned. Assessments of when and how to press another State require very fine judgements to be made, based on experience and detailed information gathered in the course of diplomatic business.
In cases where a person is detained in connection with international terrorism, these judgements become particularly complex. As regards the issue of the detainees now at Guantanamo Bay, as well as satisfying the clear need to safeguard the welfare of British nationals, the conduct of United Kingdom international relations has had to take account of a range of factors, including the duty of the Government to gather information relevant to United Kingdom national security and which might be important in averting a possible attack against the United Kingdom or British nationals or our allies; and the objectives of handling the detainees securely and of bringing any terrorist suspects to justice."
The position according to the United States Government and the United States Courts
"The United States Government believes that individuals detained at Guantanamo are enemy combatants, captured in connection with an on-going armed conflict. They are held in that capacity under the control of U.S. military authorities. Enemy combatants pose a serious threat to the United States and its coalition partners.
Detainees are being held in accordance with the laws and customs of war, which permit the United States to hold enemy combatants at least for the duration of hostilities. I can assure you that the United States is treating these individuals humanely and in a manner consistent with the principles of the Third Geneva Convention 1949. Representatives of the International Committee of the Red Cross are at Guantanamo Bay and meet with detainees individually and privately.
Under international humanitarian law, captured enemy combatants have no right of access to counsel or the courts to challenge their detention. If and when a detainee is charged with a crime, he would have the right to counsel and fundamental procedural safeguards."
"Taliban detainees are not entitled to POW status ... they have not conducted their operations in accordance with the laws and customs of war ... al Qaeda is an international terrorist group and cannot be considered a state party to the Geneva Convention. Its members, therefore, are not covered by the Geneva Convention, and are not entitled to POW status under the treaty."
The distinction between lawful and unlawful combatants is drawn in a passage in a Supreme Court decision ex parte Quirin (1942) 317 U.S. 1 30-31 (quoted at p.7 of A-G's response in proceedings in the United States District Court for the Eastern District of Virginia, Norfolk Division Hamdi v Rumsfeld of Bundle 2 to which we shall return):
"By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful combatants and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful."
"With respect to any individual subject to this order ..... the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal."
There is no indication whether Mr Abbasi is going to be tried and thus whether the Order applies to him.
i. Hamdi's detention is lawful since he has been seized by the military and is detained as an enemy combatant;
ii. there is no obligation under the law and customs of war for captors to charge combatants with an offence;
iii. prisoners of war have no right to counsel;
iv. the military has properly determined that Hamdi was an enemy combatant, "the executives' determination that someone is an enemy combatant and should be detained as such [being] one of the most fundamental military judgments of all",
v. the sworn declaration explaining the military's determination readily satisfies any constitutionally appropriate standard of judicial review.
Thus, in essence, the submission is that the war on terrorism is at least the equivalent to a conventional war, the military's judgment as to who is an enemy combatant should be upheld, and the rights available to citizens in relation to ordinary criminal prosecutions, e.g. the right to counsel, and the right to be brought before a court and charged within a reasonable time, are inapplicable.
Expressions of concern
"All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949.
The legal status of the detainees, and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention."
"What received less attention until recently was the Administration's plan to detain the men for as long as it deemed they posed a threat to American security. The White House is upfront about its intention to change the established rules of war. "What the Administration is trying to do is create a new legal regime," the Deputy Assistant Attorney-General, John Yoo, said in a speech earlier this year.
The old legal regime is the Geneva Convention, designed to protect legitimate prisoners of war captured during conflicts. Under the convention, it is not a crime to be a member of an enemy's army, and POWs are free to go home after the end of hostilities unless they are charged with a war crime or a crime against humanity."
"take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent Tribunal."
The United States response was delivered under cover of a letter dated 11 April, the letter stating:
"The United States wishes to inform the Commission that the legal status of the detainees is clear, that the Commission does not have jurisdictional competence to apply international humanitarian law, that the precautionary measures are neither necessary nor appropriate in this case, and that the Commission lacks authority to request precautionary measures of the United States."
The Commission made observations on 13 May 2002, and the US further responded on 15 July. Following this the Commission reasserted its authority requesting precautionary measures by letter dated 23 July 2002. Two paragraphs of that decision are worth quoting:
"In this connection, the Commission must emphasize the importance of ensuring the availability of effective and fair mechanisms for determining the status of individuals falling under the authority and control of a state, as it is upon the determination of this status that the rights and protections under domestic and international law to which those persons may be entitled depend. This fundamental prerequisite is reflected in the provisions of numerous international instruments, including Article 5 of the Third Geneva Convention and Article XVIII of the American Declaration, which must be interpreted and applied so as to be given practical effect. Partly for this reason, human rights supervisory bodies such as this Commission may raise doubts concerning the status of persons detained in the course of an armed conflict, as it has in the present matter, and require that such status be clarified to the extent that such clarification is essential to determine whether their human rights are being respected. In light of the principle of efficacy, it is not sufficient for a detaining power to simply assert its view as to the status of a detainee to the exclusion of any proper or effectual procedure for verifying that status.
Notwithstanding this basic precept which underlies the Commission's present request for precautionary measures, the United States has not provided the Commission with any information concerning steps that have been taken to clarify the legal status of each of the detainees at Guantanamo Bay. Rather, it has reiterated the view asserted by the United States prior to the adoption of the Commission's measures, namely that the legal status of the detainees is clear because the Executive Branch of the US government considers that neither the Taliban nor the al Qaeda detainees meet the criteria applicable to lawful combatants under the Third Geneva Convention. The Commission has already determined, however, that doubts continue to exist concerning the legal status of the detainees, and that it remains entirely unclear from their treatment by the United States what minimum rights under international human rights and humanitarian law the detainees are entitled to. The United States has only said that it "is treating and will continue to treat all of the individual detained at Guantanamo Bay humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the [Geneva Convention]." While the Commission is encouraged that the United States intends to treat the detainees humanely, this statement appears to confirm the Commission's previous finding that, in the State's view, the nature and extent of rights afforded to the detainees remain entirely at the discretion of the US government. And as indicated by the Commission in its initial request, this is not sufficient to comply with the United States' international obligations."
The claimants' complaint
The relief sought
Against the First Respondent [Defendant]:
(i) That the government of the United Kingdom has the right to protect the interests of its nationals, within the limits permitted by international law;
(ii) That acts or omissions with respect to the said right are exercises of jurisdiction and/or acts of sovereignty over the said nationals;
(iii) That in the exercise of such sovereignty or jurisdiction, the United Kingdom government should act compatibly with the Convention rights of such nationals;
(iv) That the Second Claimant [this and other references to the Second Claimant in Section 7 should be references to the First Claimant] as a British national temporarily present detained abroad without access to a local court or tribunal for determination of the legality, purpose and intended duration of the detention, is held arbitrarily contrary to international standards in the ECHR, the ICCPR or the ADHR respectively;
(v) That the Second Claimant accordingly is in need of the exercise of the said jurisdiction and powers enjoyed by the Defendants;
(vi) That accordingly, the Respondents [Defendants] are under a duty to take all reasonable steps within their jurisdiction to cause, seek or require the government of the United States to:-
a. release the Second Claimant from detention or;
b. return him to the custody or control of the Respondents [Defendants] in the United Kingdom; or
c. bring the Second Claimant before a competent court or tribunal to determine whether the Claimant is being held in accordance with law, and applicable international standards;
d. permit access by the Second Claimant to a lawyer of his choice for the purpose of c. above, and/or advising of his rights with respect to any criminal law investigation to which he may be subject.
(vii) That in the discharge of the said duty, the Respondents [Defendants] should make diplomatic representations to the United States authorities at whichever level and in whatever terms is considered most appropriate to achieve the ends stated in vi. above.
Is the legitimacy of action taken by a foreign sovereign state justiciable?
"The Court would here observe that, within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to national law, if means are available, with a view to furthering their cause or obtaining redress. The municipal legislator may lay upon the State an obligation to protect its citizens abroad, and may also confer upon the national a right to demand the performance of that obligation, and clothe the right with corresponding sanctions. However, all these questions remain within the province of municipal law and do not affect the position internationally." (1970 ICJ reports, p. 3, para. 78).
He submitted that this passage demonstrates that no breach of comity is involved where a court adjudicates on a claim for a domestic law remedy that is founded on an alleged breach of international law by another State.
Is executive action in the conduct of foreign affairs justiciable?
(1) R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai (107 ILR 462 (1985)):
"... in the context of a situation with serious implications for the conduct of international relations, the courts should act with a high degree of circumspection in the interests of all concerned. It can rarely, if ever, be for judges to intervene where diplomats fear to tread." (p.479, per Sir John Donaldson MR)
(2) R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Ferhut Butt (116 ILR 607 (1999)):
"The general rule is well established that the courts should not interfere in the conduct of foreign relations by the Executive, most particularly where such interference is likely to have foreign policy repercussions (see R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett  1 QB 811 at 820). This extends to decisions whether or not to seek to persuade a foreign government of any international obligation (e.g. to respect human rights) which it has assumed. What if any approach should be made to the Yemeni authorities in regard to the conduct of the trial of these terrorist charges must be a matter for delicate diplomacy and the considered and informed judgement of the FCO. In such matters the courts have no supervisory role." (p.615, per Lightman J).
"Whether and when to seek to interfere or to put pressure on in relation to the legal process, if ever it is a sensible and a right thing to do, must be a matter for the Executive and no one else, with their access to information and to local knowledge. It is clearly not a matter for the courts. It is clearly a high policy decision of a government in relation to its foreign relations and is not justiciable by way of judicial review." (p.622, per Henry LJ).
(3) R. (Suresh and Manickavasagam) v. Secretary of State for the Home Department  EWHC Admin 1028 (unreported, 16 November 2001):
"... there is, in my judgement, no duty upon the Secretary of State to ensure that other nations comply with their human rights obligations. There may be cases where the United Kingdom Government has, for example by diplomatic means, chosen to seek to persuade another State to take a certain course in its treatment of British nationals; but there is no duty to do so." (paragraph 19, per Sir Richard Tucker).
"The Special Rapporteur recognised that he had introduced Article 4 de lege ferenda. As already indicated, the proposal enjoyed the support of certain writers, as well as some members of the Sixth Committee and of the International Law Association; it even formed part of some Constitutions. It was thus an exercise in the progressive development of international law. But the general view was that the issue was not yet ripe for the attention of the Commission and that there was a need for more state practice and, particularly, more opinio juris before it could be considered." (ILC Report, 2000, para. 456).
"The government adheres to the orthodoxy of the 'Vattelian' fiction that diplomatic protection is the right of the State, that it is a right to claim for breaches of international law ... which affects its nationals. Whether or not to bring the claim, on what terms it is settled and the destination of the proceeds of any settlement are for the State alone to decide. This international perspective is replicated in domestic law, where the presentation of claims is an exercise of the foreign affairs prerogative, which, despite the advances in accountability for the exercise of prerogative powers in recent years, has remained outside the scope of judicial review."
"What would be required of the English court is to identify a minimum obligation on the government to give an account of what steps it has taken by way of intervention and why, given the circumstances, it has not done more."
This was the minimum obligation that Mr Blake urged the court should recognise in the present case.
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1."
Is the legitimacy of executive action taken by a foreign State justiciable?
"24. On behalf of IAC Mr Donaldson submitted that the public policy exception to the recognition of provisions of foreign law is limited to infringements of human rights. The allegation in the present action is breach of international law by Iraq. But breach of international law by a state is not, and should not be, a ground for refusing to recognise a foreign decree. An English court will not sit in judgment on the sovereign acts of a foreign government or state. It will not adjudicate upon the legality, validity or acceptability of such acts, either under domestic law or international law. For a court to do so would offend against the principle that the courts will not adjudicate upon the transactions of foreign sovereign states. This principle is not discretionary. It is inherent in the very nature of the judicial process: see Buttes Gas and Oil Co v Hammer (No 3)  AC 888, 932. KAC's argument, this submission by IAC continued, invites the court to determine whether the invasion of Kuwait by Iraq, followed by the removal of the ten aircraft from Kuwait to Iraq and their transfer to IAC, was unlawful under international law. The courts below were wrong to accede to this invitation.
25. My Lords, this submission seeks to press the non-justiciability principle too far. Undoubtedly there may be cases, of which the Buttes case is an illustration, where the issues are such that the court has, in the words of Lord Wilberforce, at p.938, "no judicial or manageable standards by which to judge [the] issues":"the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were 'unlawful' under international law."
This was Lord Wilberforce's conclusion regarding the important inter-state and other issues arising in that case: see his summary, at p.937.
26. This is not to say an English court is disabled from ever taking cognisance of international law or from ever considering whether a violation of international law has occurred. In appropriate circumstances it is legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law. Lord Wilberforce himself accepted this in the Buttes case, at p 931D. Nor does the "non-justiciable" principle mean that the judiciary must shut their eyes to a breach of an established principle of international law committed by one state against another when the breach is plain and, indeed, acknowledged. In such a case the adjudication problems confronting the English court in the Buttes litigation do not arise. The standard being applied by the court is clear and manageable, and the outcome not in doubt. That is the present case."
".... if the decree had simply provided that all Germans who had left Germany since Hitler's advent to power with the intention of making their homes elsewhere should cease to be German nationals it may be that our courts would have had to recognise it even though many of those concerned were not in truth voluntary emigrants but had been driven from their native land. But the 1941 decree did not deprive all "émigrés" of their status as German nationals. It only deprived Jewish émigrés of their citizenship. Further, as the later paragraphs of the decree show, this discriminatory withdrawal of their rights of citizenship was used as a peg upon which to hang a discriminatory confiscation of their property. A judge should, of course, be very slow to refuse to give effect to the legislation of a foreign state in any sphere in which, according to accepted principles of international law, the foreign state has jurisdiction. He may well have an inadequate understanding of the circumstances in which the legislation was passed and his refusal to recognise it may be embarrassing to the branch of the executive which is concerned to maintain friendly relations between this country and the foreign country in question. But I think – as Upjohn J thought (see In re Claim by Herbert Wagg & Co Ltd  Ch. 323, 334) – that it is part of the public policy of this country that our courts should give effect to clearly established rules of international law. Of course on some points it may be by no means clear what the rule of international law is. Whether, for example, legislation of a particular type is contrary to international law because it is "confiscatory" is a question upon which there may well be wide differences of opinion between communist and capitalist countries. But what we are concerned with here is legislation which takes away without compensation from a section of the citizen body singled out on racial grounds all their property on which the state passing the legislation can lay its hands and, in addition, deprives them of their citizenship. To my mind a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all."
"having regard to the principle of comity under which the courts of one country are very slow to adjudicate upon the actions or decisions of another country or its courts acting within the territory of that country, Parliament could not have intended that the Secretary of State or the courts of this country might, in effect, have to make a decision that an action by the German or French governments or a ruling of a German or French court was wrong in law."
"Fifthly, counsel for the Secretary of State raised a matter which did cause me concern at one stage, namely whether the view I have adopted contains an implicit criticism of the judicial departments of Germany and France. I certainly intend no criticism of the interpretations adopted in good faith in Germany and France. Unanimity on all perplexing problems created by multilateral treaties is unachievable. National courts can only do their best to minimise the disagreements. But ultimately they have no choice but to apply what they consider to be the autonomous meaning. Here the difference is fundamental and cannot be overcome by a form of words. The House is bound to take into account the obligations of the United Kingdom Government and to apply the terms of section 2(2)(c) of the 1996 Act."
Our view of Mr Abbasi's predicament
"for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained wherever that restraint is inflicted"
(Blackstone, Commentaries (1768) vol 3 p.131, cited by Lord Evershed MR, ibid, p.292; see also the recent review of the authorities by Laws LJ, R (Bancoult) v Foreign Secretary  2 WLR 1219, 1236).
"...no member of the executive can interfere with the liberty... of a British subject except on the condition that he can support the legality of his action before a court of justice" (R v Home Secretary ex p Khawaja  1 AC 74, 110, per Lord Scarman; citing the classic dissenting judgment of Lord Atkin in Liversidge v Anderson  AC 206, 245 and Eshugbayi Eleko v Government of Nigeria  AC 662, 670).
This principle applies to every person, British citizen or not, who finds himself within the jurisdiction of the court: "He who is subject to English law is entitled to its protection." (per Lord Scarman, ibid p.111). It applies in war as in peace; in Lord Atkin's words (written in one of the darkest periods of the last war):
"In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace." (Liversidge v Anderson  AC 206, 245 at p.244)
" the 'extraordinary prestige' of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence... It is 'a writ antecedent to statute, and throwing its root deep into the genius of our common law... It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement...'" (adopting the words of Lord Birkenhead LC, in Secretary of State v O'Brien  AC 603, 609).
"It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and liberty clash most acutely, not only in England in the 17th Century, but also in America from our very beginnings and today. " (ibid p.401)
"4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that a court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."
By Article 2, each state party undertakes to
"ensure to all individuals within its territory and subject to its jurisdiction" the rights recognised by the Covenant "without distinction of any kind, such as... national origin..."
"What emerges from the efforts of the international community to introduce orderly arrangements for controlling the power of detention of non-nationals is a distinct movement away from the doctrine of the inherent power of the state to control the treatment of non-nationals within its borders as it will towards a regime, founded on modern international human rights norms, which is infused by the principle that any measures that are restrictive of liberty, whether they relate to nationals or non-nationals, must be such as are prescribed by law and necessary in a democratic society. The state's power to detain must be related to a recognised object and purpose, and there must be a reasonable relationship of proportionality between the end and the means. On the other hand, both customary international law and the international treaties by which this country is bound expressly reserve the power of a state in time of war or similar public emergency to detain aliens on grounds of national security when it would not necessarily detain its own nationals on those grounds."
These comments can be applied with equal force to those suspected of having taken part in military operations involving terrorist organisations.
Is the conduct of the Secretary of State justiciable?
"In the above-mentioned Soering case the Court recognised that Article 3 has some, limited, extraterritorial application, to the extent that the decision by a Contracting State to expel an individual might engage the responsibility of that State under the Convention, where substantial grounds had been shown for believing that the person concerned, if expelled, faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country. In the judgment it was emphasised, however, that insofar as any liability under the Convention might be incurred in such circumstances, it would be incurred by the expelling Contracting State by reason of its having taken action which had as a direct consequence the exposure of an individual to proscribed ill-treatment.
The applicant does not contend that the alleged torture took place within the jurisdiction of the United Kingdom or that the United Kingdom authorities had any causal connection with its occurrence. In these circumstances, it cannot be said that the High Contracting Party was under a duty to provide a civil remedy to the applicant in respect of torture allegedly carried out by the Kuwaiti authorities."
"...liability is incurred in such cases by an action of the respondent state concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a state's competence or jurisdiction abroad."
As to the former point, the Court held that the argument was inconsistent with the terms of Article 1 of the Convention.
"The court is of the view, therefore, that article 1 of the convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case."
"In sum, the case law of the court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government.
Additionally, the court notes that other recognised instances of the extra-territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra-territorial exercise of jurisdiction by the relevant state."
i. The jurisdiction referred to in Article 1 of the Convention will normally be territorial jurisdiction.
ii. Where a State enjoys effective control of foreign territory, that territory will fall within its jurisdiction for the purposes of Article 1.
iii. Where, under principles of international law, a state enjoys extra-territorial jurisdiction over an individual and acts in the exercise of that jurisdiction, that individual will be deemed to be within the jurisdiction of the state for the purposes of Article 1, insofar as the action in question is concerned.
"In this respect the Commission observes that no right to diplomatic protection or other such measures by a High Contracting Party on behalf of persons within its jurisdiction is as such guaranteed by the Convention. The question nevertheless remains whether any right to diplomatic or other intervention vis-à-vis a third state, which by action within its own territory has interfered with the Convention rights of a person "within the jurisdiction" of a Contracting State, can be inferred from the obligation imposed on the Contracting State by Article 1 of the Convention to "secure" that person's rights.
Having considered the parties' submissions the Commission has come to the conclusion that no such right can be inferred from Article 1 of the Convention, in conjunction in particular with articles 8 and 10 of the Convention which are invoked in the present case, reaching this conclusion it has particularly taken into account the general arguments put forward by the respondent Government as to the implications of accepting such an interpretation of the Convention. In Particular it does not consider that Article 1 of the Convention can, consistently with the generally recognised principle set forth in Article 34 of the Vienna Convention on the Law of Treaties, be interpreted so as to give rise to any obligation on the Contracting Parties to secure that non-contracting states, acting within their own jurisdiction, respect the rights and freedoms guaranteed by the Convention, even though, as in the present case, their failure to do so may have adverse effects on persons within the jurisdiction of the Contracting State. It has therefore concluded that, as the respondent Government have submitted, the act or omission forming the substantive basis of the alleged violation of the Convention must be one falling within the jurisdiction of the Contracting State, at least in the sense that it constitutes an exercise of "jurisdiction" by that state or a failure to exercise lawful jurisdiction in the sense of sovereign power. It is not sufficient that the "victim" alone is within that state's jurisdiction. Accordingly, even though, as the applicant points out, Article 10 of the Convention guarantees the right to receive and impart information "regardless of frontiers", this does not imply any right to intervention in respect of the acts of a non-contracting state for which the Contracting State is in no way responsible. It implies merely that the Contracting State must, in the exercise of its jurisdiction, itself respect this right."
While this is a decision of relative antiquity, we are not aware of any more recent Strasbourg jurisprudence that throws doubt on it. The principles that it enunciates are fatal to this limb of the applicants' argument.
"many of the most important prerogative powers concerned with control of the armed forces and with foreign policy and with other matters which are unsuitable for discussion or review in the Law Courts"
"Such decisions will generally involve the application of Government policy. The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the Executive discretion is to be wisely exercised, need to weighed against one another - a balancing exercise which judges by their upbringing and experience are ill-qualified to perform."
"The majority of their Lordships indicated that whether judicial review of the exercise of a prerogative power is open depends upon the subject matter and in particular whether it is justiciable. At the top of the scale of executive functions under the Prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving parliament, mobilising the armed forces. Clearly those matters and no doubt a number of others are not justiciable but the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision affecting the right of individuals and their freedom of travel. It raises issues which are just as justiciable as, for example, the issues arising in immigration cases."
"...Ratification of a convention is a positive statement by the Executive Government of this country to the world and the Australian people that the Executive Government and its agencies will act in accordance with convention that positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrators will act in conformity with the Convention..." (p.291, per Mason CJ and Deane J – Lord Woolf's emphasis).
At p.592 Hobhouse LJ also accepted the approach of the Australian case, but emphasised that where the Secretary of State had adopted a specific policy, as he had in the instant case, it was not possible to derive any expectation from the treaty going beyond the scope of the policy.
"If, in exhausting any municipal remedies, the claimant has met with prejudice or obstruction, which are a denial of justice, HMG may intervene on his behalf in order to secure justice."
"At present we consider making representations if, when all legal remedies have been exhausted, the British national and their lawyer have evidence of a miscarriage or denial of justice. We are extending this to cases where fundamental violations of the British national's human rights had demonstrably altered the course of justice. In such cases, we would consider supporting their request for an appeal to any official human rights body in the country concerned, and subsequently giving advice on how to take their cases to relevant international human rights mechanisms."
"We are very conscious of the other government's obligations to ensure the respect of the rights of British citizens within their jurisdiction. This includes the right to a fair trial. In cases where a British citizen may have suffered a miscarriage of justice we believe that the most appropriate course of action is for the defendant's lawyers to take action through the local courts. If concerns remain, their lawyers can take the case to the United Nations Human Rights Committee, where the State in question has accepted the right of individual petition under the ICCPR. The UK Government would also consider making direct representations to third governments on behalf of British citizens where we believe that they were in breach of their international obligations. " (emphasis added)
"Much has been done for those who are on trial. This is because, as is accepted by the Secretary of State before us, there lies on the respondent a common law duty to protect its citizens abroad. The extent and the limits of that duty are set out in a leaflet that is available for those who travel abroad."
"There were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim."
"these aliens fall within the protections of certain provisions of international law and that diplomatic channels remain an ongoing and viable means to address the claims raised by these aliens." (p.2)
"The claimants are not seeking relief against the US Government and nor are they seeking to dictate to the Executive how it should conduct foreign policy and by what means; they are merely stating their case why the Government should intervene with another foreign sovereign state".
Orally he made clear what he wanted was the case considered by the Foreign and Commonwealth Office.
i. It is not an answer to a claim for judicial review to say that the source of the power of the Foreign Office is the prerogative. It is the subject matter that is determinative.
ii. Despite extensive citation of authority there is nothing which supports the imposition of an enforceable duty to protect the citizen. The European Convention on Human Rights does not impose any such duty. Its incorporation into the municipal law cannot therefore found a sound basis on which to reconsider the authorities binding on this court.
iii. However the Foreign Office has discretion whether to exercise the right, which it undoubtedly has, to protect British citizens. It has indicated in the ways explained what a British citizen may expect of it. The expectations are limited and the discretion is a very wide one but there is no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation; but the court cannot enter the forbidden areas, including decisions affecting foreign policy.
iv. It is highly likely that any decision of the Foreign and Commonwealth Office, as to whether to make representations on a diplomatic level, will be intimately connected with decisions relating to this country's foreign policy, but an obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, would seem unlikely itself to impinge on any forbidden area.
v. The extent to which it may be possible to require more than that the Foreign Secretary give due consideration to a request for assistance will depend on the facts of the particular case.
Are the applicants entitled to relief in the present case?
i. It is quite clear from Mr Fry's evidence that the Foreign and Commonwealth Office have considered Mr Abbasi's request for assistance. He has also disclosed that the British detainees are the subject of discussions between this country and the United States both at Secretary of State and lower official levels. We do not consider that Mr Abbasi could reasonably expect more than this. In particular, if the Foreign and Commonwealth Office were to make any statement as to its view of the legality of the detention of the British prisoners, or any statement as to the nature of discussions held with United States officials, this might well undermine those discussions.
ii. On no view would it be appropriate to order the Secretary of State to make any specific representations to the United States, even in the face of what appears to be a clear breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of foreign policy, and an impact on such policy at a particularly delicate time.
iii. The position of detainees at Guantanamo Bay is to be considered further by the appellate courts in the United States. It may be that the anxiety that we have expressed will be drawn to their attention. We wish to make it clear that we are only expressing an anxiety that we believe was felt by the court in Rasul. As is clear from our judgment, we believe that the United States courts have the same respect for human rights as our own.
iv. The Inter-American Commission on Human Rights has taken up the case of the detainees. It is as yet unclear what the result of the Commission's intervention will be. It is not clear that any activity on the part of the Foreign and Commonwealth Office would assist in taking the matter further while it is in the hands of that international body.