England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
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

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th November, 2002

Lord Phillips:

This is the judgment of the Court to which all members have contributed.

 

Introduction

1. Feroz Ali Abbasi, the first claimant, is a British national. He was captured by United States forces in Afghanistan. In January 2002 he was transported to Guantanamo Bay in Cuba, a naval base on territory held by the United States on long lease pursuant to a treaty with Cuba. By the time of the hearing before us he had been held captive for eight months without access to a court or any other form of tribunal or even to a lawyer. These proceedings, brought on his behalf by his mother, the second claimant, are founded on the contention that one of his fundamental human rights, the right not to be arbitrarily detained, is being infringed. They seek, by judicial review, to compel the Foreign Office to make representations on his behalf to the United States Government or to take other appropriate action or at least to give an explanation as to why this has not been done.

2. On 15 March 2002 Richards J. refused the application for permission to seek judicial review. However, on 1 July 2002 this court granted that permission, retained the matter for itself, and directed that the substantive hearing commence on 10 September 2002. It did so because the unusual facts of this case raise important issues. To what extent, if at all, can the English court examine whether a foreign state is in breach of treaty obligations or public international law where fundamental human rights are engaged? To what extent, if at all, is a decision of the executive in the field of foreign relations justiciable in the English court? More particularly, are there any circumstances in which the court can properly seek to influence the conduct of the executive in a situation where this may impact on foreign relations? Finally, in the light of the answers to these questions, is any form of relief open to Mr Abbasi and his mother against the Secretary of State for Foreign and Commonwealth Affairs?

Mr Abbasi's predicament

3. Mr Abbasi was one of a number of British citizens captured by American forces in Afghanistan. He was, with others, transferred to Guantanamo Bay. Those currently detained there include seven British citizens. As soon as she learned what had happened to her son, Mrs Abbasi made contact with the Foreign Office. Through lawyers, she pressed the Foreign Office to assist in ensuring that the conditions in which her son was detained were humane. She has also pressed the Foreign Office to procure from the United States authorities clarification of her son's status and of what is to be done with him in the future.

4. Evidence of action taken by the United Kingdom Government in relation to Mr Abbasi and the other British detainees in Guantanamo Bay has been provided in a witness statement by Mr Fry, a Deputy Under-Secretary of State for Foreign and Commonwealth Affairs. He speaks of close contact between the United Kingdom Government and the United States Government about the situation of the detainees and their treatment and of the consistent endeavour of the government to secure their welfare and ensure their proper treatment. To that end, we are told, the circumstances of the British detainees have been the subject of regular representations by the British Embassy in Washington to the United States Government. They have also been the subject of direct discussions between the Foreign Secretary and the United States Secretary of State as well as 'numerous communications at official level'.

5. The government was able to obtain permission from the United States Government to visit detainees at Guantanamo Bay on three occasions, between 19 and 20 January, between 26 February and 1 March and between 27 and 31 May. These visits were conducted by officials of the Foreign and Commonwealth Office and members of the security services. The former were able to assure themselves that the British prisoners, including Mr Abbasi, were being well treated and appeared in good physical health. By the time of the third visit, facilities had been purpose built to house detainees. Each was held in an individual cell with air ventilation, a washbasin and a toilet. It is not suggested by the claimants that Mr Abbasi is not being treated humanely.

6. The members of the security services took advantage of these visits to question Mr Abbasi with a view to obtaining information about possible threats to the safety of the United Kingdom. Initially this was the subject of independent complaint by the claimants, but before us the argument has focussed on the allegation that the Foreign and Commonwealth Office is not reacting appropriately to the fact that Mr Abbasi is being arbitrarily detained in violation of his fundamental human rights.

7. The position of the Foreign and Commonwealth Office is summarised by Mr Fry in the following terms:

"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."

8. In or about February 2002 the claimants initiated habeas corpus proceedings in the District Court of Columbia. As we shall explain, rulings in proceedings brought by other detainees in a similar position demonstrate that Mr Abbasi's proceedings have, at present, no prospect of success.

The position according to the United States Government and the United States Courts

9. On 2 July 2002 the First Secretary at the American Embassy in London wrote to solicitors acting for the claimants in the following terms:

"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."

10. The Third Geneva Convention 1949 relates to Prisoners of War. The United States has not, however, accepted that prisoners held at Guantanamo have the status of prisoners of war. The position of the United States is made plain in the following passage of a statement made by the United States Press Secretary on 2 February 2002:

"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."

11. Mr Abbasi is, as we understand the position, detained pursuant to the executive authority entrusted to the President as Commander in Chief of the US Military. It is not clear whether he is detained pursuant to a Military Order issued by the United States President on 13 November 2001 relating to "Detention, treatment, and trial of certain non-citizens in the war against terrorism". We can summarise the effect of that Order as follows. The Order stipulates that it applies to any individual who is not a citizen of the United States with respect to whom the President has determined in writing that there is reason to believe (1) that such individual is a member of al-Qaeda or (2) that he was engaged in international terrorism, or (3) that it is in the interests of the United States that he should be subject to the order. The order provides that any such individual will be detained at an appropriate location and treated humanely. It provides that any individual "when tried" will be tried by a military tribunal, and contains extensive provisions relating to such trial. It further provides:

"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.

12. On 19 February 2002 three prisoners detained at Guantanamo Bay, two British and one Australian, commenced a civil action in the District Court of Columbia – Rasul et al. v George Walker Bush et al. in which they petitioned for a writ of habeas corpus. The government moved to dismiss the action for want of jurisdiction. A similar motion was brought to dismiss an action brought by relatives of ten Korean citizens, who were also detained at Guantanamo Bay – Odah et al. v United States of America et al. The petitioners sought an order that the detainees be informed of the charges, if any, against them, be permitted to consult with counsel and have access to a court or other impartial tribunal. The Court treated this as an application for habeas corpus. After hearing argument the Court ruled that the military base at Guantanamo Bay was outside the sovereign territory of the United States and that, in consequence of this fact and the fact that the claimants were aliens, the Court had no jurisdiction to entertain their claims. The position would have been different had they been American subjects.

13. In so holding, the District Court purported to follow a majority decision of the Supreme Court in Eisentrager v Forrestal (1949) 174 F.2d 961. That case concerned German citizens who had been convicted of espionage by a United States military commission after the surrender of Germany at the end of the Second World War and repatriated to Landsberg Prison in Germany to serve their sentences. The prison was under the control of the United States army. The prisoners petitioned for writs of habeas corpus. Giving the decision of the majority, Justice Robert Jackson held that a court was unable to extend the writ of habeas corpus to aliens held outside the territory of the United States. He distinguished between aliens and citizens, observing that "citizenship as a head of jurisdiction and a ground of protection was old when Paul invoked it in his appeal to Caesar".

14. The District Court distinguished the position of aliens held at a port of entry into the United States and seeking immigration. They are entitled to a writ of habeas corpus to ascertain whether the restraint is lawful – Nishimura Ekiu v. United States (1892) 142 U.S. 651, 660.

15. We are informed that the decision in Rasul is subject to appeal. We are further informed that regardless of the outcome of the appeal, a petition for certiorari is almost certain to be filed with the Supreme Court. In these circumstances we cannot proceed on the basis that the last word has been spoken by the United States courts on their jurisdiction to entertain a claim for habeas corpus on behalf of detainees at Guantanamo. On the face of it we find surprising the proposition that the writ of the United States courts does not run in respect of individuals held by the government on territory that the United States holds as lessee under a long term treaty.

16. Mr Fry has placed before the court a pleading in a case, Hamdi v Donald Rumsfeld, concerning a national of Saudi Arabia, born in Louisiana and claiming to be an American citizen. He was captured in Afghanistan, held initially in Guantanamo Bay but then transferred to custody in Norfolk, Virginia. His father has petitioned on his behalf for habeas corpus in the District Court for the Eastern District of Virginia, Norfolk Division. No point has been taken on jurisdiction, no doubt because Mr Hamdi is detained on United States territory and claims American citizenship. The pleading in question is the response of the Attorney-General in what appears to be the final stages of the hearing at first instance. The material parts of this response can be summarised as follows:

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.

17. The Attorney-General's response indicates that his submissions accord with observations of the Court of Appeals of the Fourth Circuit in interlocutory hearings in the same proceedings. Once again it seems likely that these proceedings will, whatever their outcome, be subject to appeal and thus will not represent the last word on the extent to which the status of a person held as an enemy combatant is open to review by the courts.

Expressions of concern

18. There have been widespread expressions of concern, both within and outside the United States, in respect of the stand taken by the United States government in cases such as Hamdi. On 16 January 2002 the United Nations High Commissioner for Human Rights issued a statement which included the following assertions

"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."

19. Submissions made in Hamdi seem, however, to entail that the decision of the military as to who is an enemy combatant is almost unchallengeable. Furthermore, whereas in a conventional war prisoners of war have to be released at the end of hostilities, there is the possibility that, by denying the detainees captured during the war against terrorism the status of prisoners of war, their detention may be indefinite. The position of the United States Administration was described in an article about two Australian detainees in the Sydney Morning Herald for 17 May 2002, entitled 'At the President's Pleasure', in this way:

"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."

20. In her 8^th Witness statement Miss Christian suggests that countries other than the United Kingdom are also concerned about their citizens being held without due process. One matter of particular concern relates to the length of detention. As Miss Christian points out, a citizen of the United States has the right to go before a court to challenge the legality of his detention. That right at the very least compels the US military to say whether the particular individual is being held as an enemy combatant. In practice, it enables that individual to argue the points of concern and challenge the response of the US government exemplified by the A-G's response in Hamdi. Thus Miss Christian submits that there is serious discrimination between US citizens and non-US citizens held as enemy combatants.

21. The Inter-American Commission on Human Rights is an organ of the Organisation of American States, of which the United States is a member. By letter dated 12 March 2001 the Commission requested that the United States:

"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

22. The submissions of Mr Blake QC, on behalf of the claimants, echo the points made by the Commission. Those submissions can be summarised as follows: The status of Mr Abbasi is unclear; it is unclear precisely how long the US authorities intend to hold him; it is unclear whether they intend to bring charges against him before a military tribunal or a court. Of critical significance, he has no access to a court to clarify the legitimacy of his continued detention, even to the extent of clarifying that the President continues to rule that he is an individual to whom the Presidential decree applies. Even less does he have any opportunity to challenge the validity of that decree. The United States has chosen to place non-US citizens in a different position from US citizens. It is an open question whether US citizens' challenges will ultimately be successful, but they have had, and do have, access to the courts in the United States. Non-US citizens are detained in a place over which the United States has de facto control, but from which the detainee has no ability to test the legality of his detention. Indeed the Presidential decree purports to deprive the detainee of the right to go to any court. He is in (as it was described during the hearing) 'a legal black hole'.

The relief sought

23. By the re-amended claim form the claimants request the court to declare:

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.

24. Relief was also claimed against the Second Defendant, but the Claimants have not pursued a separate claim against the Second Defendant before us, and we shall say no more of this.

25. Although the formulation of this relief was the result of a process of amendment and re-amendment, it was almost comprehensively abandoned by Mr Blake in the course of oral submissions. He had, so it seemed to us, great difficulty in advancing his claim to relief in a form which could readily be transposed into an order of the court. The essence of his submissions was that Mr Abbasi was subject to a violation by the United States of one of his fundamental human rights and that, in these circumstances, the Foreign Secretary owed him a duty under English public law to take positive steps to redress the position, or at least to give a reasoned response to his request for assistance. Mr Blake accepted that no legal precedent established such a duty, but submitted that the increased regard paid to human rights in both international and domestic law required that such a duty should be recognised.

The issues

26. For the Secretary of State, Mr Greenwood QC submitted that the authorities clearly established two principles that posed insuperable barriers to the relief claimed in these proceedings: (1) the English court will not examine the legitimacy of action taken by a foreign sovereign state; (2) the English court will not adjudicate upon actions taken by the executive in the conduct of foreign relations. Most of the debate focussed on the question of whether these principles do, indeed, bar the claimants' claim to relief.

The submissions

27. We propose to outline the submissions made in respect of each of the principles relied upon by Mr Greenwood.

Is the legitimacy of action taken by a foreign sovereign state justiciable?

28. A lengthy section of Mr Blake's argument was devoted to demonstrating that the United States was in breach of a fundamental right, or 'ius cogens', in subjecting Mr Abbasi to arbitrary detention. Mr Blake did not suggest that there might not be good grounds for detaining Mr Abbasi. He accepted that the application of the principles of the rules of war, and the provisions of the Geneva Convention, raised difficult questions in the context of the events of September 11^th and the military campaign in Afghanistan which followed. The status of Mr Abbasi was in doubt. The violation of international law consisted in his denial of access to any tribunal before which that doubt could be resolved. He was, in truth, subject to arbitrary detention.

29. In support of this submission, Mr Blake referred us to a number of instruments which, so he submitted, established that the prohibition of arbitrary detention had reached the status of a norm of customary international law: Article 9 of the United Nations Declaration of Human Rights; Article 9 of the International Covenant on Civil and Political Rights; Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; Article 7 of the American Convention of Human Rights.

30. Mr Blake also relied on the 3^rd Geneva Convention. Article 5 provides that where there is doubt as to whether persons who have committed belligerent acts are prisoners of war, they are to be accorded the protection of the Convention until their status has been determined 'by a competent tribunal'. It was contrary to the Convention and to international law to deny Guantanamo prisoners both the protection of the Convention and the right to have their status determined by a competent tribunal. Principles of humanitarian law and human rights alike would not permit the denial of access to a review by a court of whether detention was lawful.

31. Mr Greenwood did not challenge the proposition that arbitrary detention violated a fundamental human right. He emphasised that the United States government denied that the detention of prisoners at Guantanamo was unlawful and submitted that the legality of that detention was not justiciable in an English court.

32. In support of the proposition that the English court has no jurisdiction to determine whether a foreign State is in breach of its treaty obligations, Mr Greenwood referred us to the observations of Lord Diplock in British Airways v. Laker Airways [1985] AC 58 at 85-6. He further submitted that it is well established that the English court will not adjudicate upon the legality of a foreign State's transactions in the sphere of international relations in the exercise of sovereign authority, citing Buttes Gas and Oil v Hammer [1982] AC 888 at 932 (per Lord Wilberforce); Westland Helicopters Ltd v AOI [1995] QB 282. To do so would involve a serious breach of comity: see Buck v AG [1965] 1 Ch 745 at 770-771 (per Lord Diplock) and R v Secretary of State, ex parte British Council of Turkish Cypriot Associations 112 ILR 735 at 740 (per Sedley J). He observed that the relief sought by the claimants was founded on the assertion that the United States government was acting unlawfully. For the court to rule on that assertion would be contrary to comity and to the principle of State immunity.

33. The cases cited by Mr Greenwood unquestionably support the general proposition for which they were cited. It is not, however, a proposition that affords of no exception. Mr Greenwood accepted that there were exceptions to the rule. He submitted, however, that the exceptions applied only in exceptional circumstances and had no application to the facts of the present case. Examples of cases where the rule was not applied are Oppenheim v Cattermole [1976] AC 249, R v Secretary of State for the Home Department, ex parte Adan [2001] 2 AC 477 and Kuwait Airways Corp v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1352. We shall revert to these decisions when we come to review the merits of the rival contentions.

34. Mr Blake for his part did not challenge the general proposition that the English court will not adjudicate on the legality of the executive actions of a foreign State. He held, however, that this principle of comity, founded in public international law, has no application to the facts of this case. The United States are not impleaded in the present proceedings. The rights and liabilities of the United States are not in issue. What is here sought is domestic relief against the Secretary of State.

35. Mr Blake laid emphasis on the fact that international law recognises that municipal law may afford the individual a right to diplomatic protection against breaches of international law by another State. He referred us to the following passage from the Barcelona Traction Company case – 1970 ICJ Reports at page 44:

"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.

36. This argument overlapped with the submissions made by Mr Blake in relation to the next issue – can the English court adjudicate upon the conduct of the executive in the field of international relations? In support of the submission that it was desirable that the court should assert such jurisdiction, Mr Blake referred us to the views of Professor Dugard, Special Rapporteur to the Fifty Second Session of the International Law Commission. Professor Dugard advocated municipal law rights to diplomatic protection and observed that in some States such rights were already recognised. It was implicit that the exercise of such rights did not infringe any principle of international law.

Is executive action in the conduct of foreign affairs justiciable?

37. Mr Greenwood referred to a formidable line of authority in support of his submission that the decisions taken by the executive in its dealings with foreign states regarding the protection of British citizens abroad are non-justiciable, starting with Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 (the GCHQ case). Mr Greenwood drew particular attention to the observations of Lord Diplock at p.411. He submitted that the courts have repeatedly held that the decisions taken by the executive in its dealings with foreign states regarding the protection of British nationals abroad are non-justiciable. He cited the following passages from recent decisions in support of this proposition:

(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 [1989] 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 [2001] 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).

38. To the above he added a citation from the judgment of Laws LJ in the matter of Foday Saybana Sankoh (119 ILR (2000) 389 at 396) where he described as a hopeless proposition that "the court should dictate to the executive government steps that it should take in the course of executing government foreign policy."

39. Mr Blake embarked with fervour on the task of persuading us that there were good reasons why the court should extend the boundaries of judicial review to embrace decisions as to the exercise of diplomacy where fundamental rights of British subjects were threatened in a foreign country. Public international law governed relations between states. It could not be expected to be in the van in imposing duties on individual States to protect their own subjects against violation of their human rights. There was, however, a growing recognition that international law could and should give rise to individual rights. This country should take the lead in recognising that the government owed a duty to British citizens to take appropriate steps to protect them against violation of their fundamental human rights by other countries.

40. Mr Blake started with the position under international law. The conventional view is that where a state intervenes by diplomatic action in aid of a subject who has been treated by another state in a manner which infringes international law, the injury that has been done is to the state and the right asserted is that of the state. Mr Blake drew our attention to recent developments of international law under which it has been recognised that the right infringed in such a case is that of the subject and the intervention of the state is in support of the right of its subject. It is only a short further step for the municipal law of a state to recognise a duty owed to the subject to intervene to protect the subject against the violation of the rights that he enjoys under international law.

41. Mr Blake referred us to the First Report on Diplomatic Protection by Professor Dugard, to which we have already referred. The Dugard Report proposed that a State should have legal duty (under general international law) "to exercise diplomatic protection on behalf of the injured [national] upon request, if the injury results from a grave breach of a jus cogens norm attributable to another State" (draft Article 4(1)). It suggested that such a duty (and the corresponding right of the national) should exist where the national was unable to bring a claim before a competent international court or tribunal. Mr Blake recognised that this proposal had not yet been accepted by all states parties (including the US and the UK). Indeed Professor Dugard himself had accepted that his proposal would not in fact go forward. He later said:

"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).

42. Mr Blake referred us, in addition, to an article by Professor Warbrick on Diplomatic Representations and Diplomatic Protection in (2002) 1 Ch 723. That article recognised, at p.724, the present position in English municipal law:

"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."

43. Professor Warbrick went on, however, at p.733, to observe that German constitutional case law suggested that the state had a duty to protect German nationals and that South African writers had argued for a constitutional right to diplomatic protection. He then contemplated the possibility of such a right under English domestic law, at least in a situation where urgent intervention was required to prevent torture or similar gross ill-treatment.

"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.

44. In this context Mr Blake drew attention to the 1963 Convention on Consular Relations, to which both this country and the United States are party. In the La Grand case (Germany v United States) 27 June 2001 the International Court of Justice held that Article 36 of this Convention created individual rights of detained persons to have consular access. Initially the applicants had sought to enforce such a right in these proceedings, but this remedy was not pursued before us. Mr Blake did, however, submit that this was a pertinent example of international law creating individual rights, to which effect should be given under domestic law.

45. Mr Blake also submitted that, as a matter of international law, the European Convention on Human Rights was capable of creating rights to seek diplomatic intervention on the part of a person in the position of Mr Abbasi. These submissions overlapped with submissions that the Human Rights Act should be so interpreted as to give rise to such rights under domestic law, and we shall consider them in that context, to which we now turn.

46. In answer to the case advanced by Mr Greenwood, Mr Blake submitted that the mere fact that the decision sought to be reviewed related to the exercise of prerogative power by the Foreign Office did not place a complete embargo on relief being obtained from the court. He referred to ex parte Everett [1989] 1 QB 811 relating to the issue of passports, and to Lewis v A-G of Jamaica [2001] 2 AC 50 a case concerned with the prerogative of mercy, where a procedural irregularity was held to be the subject of review. He, in his turn, relied on the GCHQ case where he pointed out that the court held that executive action was not immune from judicial review merely because it was carried out in pursuance of a power derived from a common law or prerogative, rather than a statutory source. This is an authority to which we will return.

47. Mr Blake then proceeded to develop his case as to why, on the facts of this case, the exercise of prerogative should be subject to judicial review. In essence his submissions were as follows: (i) a continuing and serious wrong was being done to Mr Abbasi, a British national, abroad; (ii) it was within the power of the Foreign and Commonwealth Office to make representations to the United States; (iii) those representations might bring the wrong to an end; (iv) the Foreign and Commonwealth Office had taken no relevant action, nor given any explanation for their failure; (v) in these circumstances judicial review should lie.

48. Mr Blake sought to derive assistance from the Human Rights Convention and the Human Rights Act, although once again he accepted that this required an extension of the existing jurisprudence. Article 1 of the Convention provides:

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1."

49. Section 6(1) of the Human Rights Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Mr Blake accepted that the applicants had to establish that Mr Abbasi was within the jurisdiction of the United Kingdom in order to invoke the Act and the Convention. He submitted however that this requirement was satisfied because, as Mr Abbasi was a British national, the United Kingdom government had jurisdiction to take measures in relation to him.

50. In support of this submission, Mr Blake relied on the reasoning of Stanley Burnton J. in R (Carson) v Secretary of State for Employment and Pensions (23^rd May 2002), a case concerned with the pension rights of a British subject resident abroad. Mr Blake accepted that there was no Convention right to diplomatic protection, but argued that if there was a causal link between the failure to accord Mr Abbasi diplomatic protection and his continued arbitrary detention, then the Foreign and Commonwealth Office was acting in a way which was incompatible with Mr Abbasi's Convention right to liberty under Article 5 and was thus in breach of Section 6 of the Human Rights Act.

Discussion

Is the legitimacy of executive action taken by a foreign State justiciable?

51. A passage in the judgment of Lord Nicholls in Kuwait Airways Corporation v Iraqi Airways Co (nos 4 and 5) [2002] 2 WLR 1353 at p.1362 identifies the relevant principles and the limits to those principles:

"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) [1982] 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."

52. It is of interest to see to what Mr Donaldson was referring when he sought to limit the policy exception to the rule to the infringement of human rights. In Oppenheim v Cattermole [1976] AC 249 one issue that arose was whether a decree passed in Germany in 1941 depriving Jews who had emigrated from Germany of their citizenship should be recognised by the English court. Lord Cross of Chelsea at 277G said this:

".... 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 [1956] 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."

53. This passage lends support to Mr Blake's thesis that, where fundamental human rights are in play, the courts of this country will not abstain from reviewing the legitimacy of the actions of a foreign sovereign state. A more topical support for this proposition can be can be derived from the exercise that the court has to undertake in asylum cases, where the issue is often whether the applicant for asylum has a well-founded fear of persecution if removed to a third country. In such circumstances consideration of the claim for asylum frequently involves ruling on allegations that a foreign state is acting in breach of international law or human rights.

54. In R v Home Secretary, ex parte Adan [2001] 2 WLR 143 the issue was raised of whether the courts of this country should entertain a contention that the courts of France and Germany were mis-applying the Refugee Convention. That case was concerned with certificates issued pursuant to s.2 of the Asylum and Immigration Act 1996.

55. The United Kingdom took the view that under Article 1A(2) of the Refugee Convention protection extended to asylum seekers who feared persecution by persons other than the state if for any reason the state could not protect them against such persecution. France and Germany were known to interpret that Article more narrowly. The United Kingdom accepted that two asylum seekers, Adan and Aitsegeur should not be returned to Somalia having regard to the United Kingdom's interpretation, but the Secretary of State had been prepared to certify in relation to their return to Germany and France respectively under s.2(3) of the Act, that those countries would not send them to another country "other than in accordance with the Convention". The House of Lords held first that there was one autonomous meaning of the Convention which was that adopted by the United Kingdom, and that the Secretary of State was not entitled to certify as he did on the basis that there were other legitimate interpretations in relation to which Germany and France should be left to take their own view. One point taken by Mr Pannick QC, for the Secretary of State in that case, was that:

"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."

56. This comity point was dealt with by Lord Slynn at p.147; Lord Steyn at pp.155/6, Lord Hutton at p.163 and Lord Hobhouse at pp.167/8. They rejected the submission. In essence their reasoning was that what the court was concerned with was the United Kingdom's obligation under the Convention as interpreted by the United Kingdom, and the Secretary of State's obligation under the Statute. Lord Steyn put it this way:

"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."

57. Although the statutory context in which Adan was decided was highly material, the passage from Lord Cross' speech in Cattermole supports the view that, albeit that caution must be exercised by this court when faced with an allegation that a foreign state is in breach of its international obligations, this court does not need the statutory context in order to be free to express a view in relation to what it conceives to be a clear breach of international law, particularly in the context of human rights.

Our view of Mr Abbasi's predicament

58. Mr Blake has founded his case upon Mr Abbasi's predicament as it currently appears. If the decision of the District Court of Columbia accurately represents the law of the United States, then the United States executive is detaining Mr Abbasi on territory over which it has total control in circumstances where Mr Abbasi can make no challenge to his detention before any court or tribunal. How long this state of affairs continues is within the sole control of the United States executive. Mr Blake contends that this constitutes arbitrary detention contrary to the fundamental norms of international law. It is not the fact that Mr Abbasi is detained on which Mr Blake relies - it is the fact that Mr Abbasi has no means of challenging the legality of his detention. It is this predicament which, so Mr Blake contends, gives rise to a duty on the part of the Foreign Secretary to come to Mr Abbasi's assistance. That assistance is claimed as a matter of last resort. We do not consider that we can deal satisfactorily with this appeal without addressing those submissions and we consider, in the light of the jurisprudence discussed above, that it is open to us to do so.

59. The United Kingdom and the United States share a great legal tradition, founded in the English common law. One of the cornerstones of that tradition is the ancient writ of habeas corpus, recognised at least by the time of Edward I, and developed by the 17^th Century into "the most efficient protection yet developed for the liberty of the subject" (per Lord Evershed MR, Ex p Mwenya [1960] 1 QB 241, 292, citing Holdsworth's History of English Law, vol 9 pp.108-125). The court's jurisdiction was recognised from early times as extending to any part of the Crown's dominions:

"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 [2001] 2 WLR 1219, 1236).

60. The underlying principle, fundamental in English law, is that every imprisonment is prima facie unlawful, and that:

"...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 [1984] 1 AC 74, 110, per Lord Scarman; citing the classic dissenting judgment of Lord Atkin in Liversidge v Anderson [1942] AC 206, 245 and Eshugbayi Eleko v Government of Nigeria [1931] 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 [1942] AC 206, 245 at p.244)

61. As one would expect, endorsement of this common tradition is no less strong in the United States. In Fay v Noia (1963) 372 US 391, 400, Justice Brennan referred to:

" 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 [1923] AC 603, 609).

62. Like Lord Atkin, he emphasised its importance in times of national emergency:

"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 17^th Century, but also in America from our very beginnings and today. " (ibid p.401)

63. The recognition of this basic protection in both English and American law long pre-dates the adoption of the same principle as a fundamental part of international human rights law. Of the many source documents to which we have been referred, it is enough to cite the International Covenant of Civil and Political Rights, to which the United Kingdom and the United States are parties. Article 9, which affirms "the right to liberty and security of person" provides:

"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..."

64. For these reasons we do not find it possible to approach this claim for judicial review other than on the basis that, in apparent contravention of fundamental principles recognised by both jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a 'legal black-hole'.

65. That is not to say that his detention as an alleged "enemy combatant" may not be justified. This court has very recently had occasion to consider the legitimacy of legislation that empowers the Secretary of State to detain within this jurisdiction aliens who are suspected of being international terrorists – A, X and Y and Others v Secretary of State for the Home Department [2002] EWCA Civ 1502. We would endorse the summary of the position under international law of Brooke LJ at paragraph 130:

"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.

66. What appears to us to be objectionable is that Mr Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. It is important to record that the position may change when the appellate courts in the United States consider the matter. The question for us is what attitude should the courts in England take pending review by the appellate courts in the United States, to a detention of a British Citizen the legality of which rests (so the decisions of the United States Courts so far suggest) solely on the dictate of the United States Government, and, unlike that of United States' citizens, is said to be immune from review in any court or independent forum.

67. It is clear that there can be no direct remedy in this court. The United States Government is not before the court, and no order of this court would be binding upon it. Conversely, the United Kingdom Government, which, through the Secretaries of State is the respondent to these proceedings, has no direct responsibility for the detention. Nor is it suggested that it has any enforceable right, or even standing, before any domestic or international tribunal to represent the rights of the applicant, or compel access to a court.

Is the conduct of the Secretary of State justiciable?

68. Mr Blake submitted that we should find that the Foreign Secretary owed Mr Abbasi a duty to respond positively to his, and his mother's, request for diplomatic assistance. He founded this submission on (i) the assertion that international law is moving towards the recognition of such a duty and that customary international law forms part of our common law; (ii) the alleged recognition of such a duty under the constitutions of Germany and, possibly, other states; (iii) the assertion that such a duty arises under the Human Rights Convention together with the Human Rights Act. It is convenient to deal with this last point first.

69. It is clear that international law has not yet recognised that a State is under a duty to intervene by diplomatic or other means to protect a citizen who is suffering or threatened with injury in a foreign State. This emerges clearly from the passage from the Barcelona Traction case which we have cited at paragraph 35 above, and from the concession made by Professor Dugard to which we have referred at paragraph 41. Mr Blake accepted this to be the case, but suggested that our municipal law should lead so that international law may follow. In these circumstances it does not seem to us that Mr Blake can derive any assistance from established principles of international law.

70. We turn to Mr Blake's reliance on the European Convention on Human Rights and the Human Rights Act. Section 2 of the Act requires us to take into account any relevant decisions of the Strasbourg Court. There are two recent decisions which are particularly in point. In Al-Adsani v United Kingdom (2002) 34 EHRR 11 the applicant, who had joint British and Kuwaiti citizenship, wished to pursue proceedings in England against the Government of Kuwait in respect of torture, to which he alleged he had been subjected in Kuwait. He was unable to do so by reasons of the provisions of the State Immunity Act 1978. He alleged before the Strasbourg court that this immunity violated Article 3 of the Convention, when read in conjunction with Articles 1 and 13. In dealing with the question of whether the torture had been committed within the jurisdiction of the United Kingdom the Court said:

"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."

71. This passage demonstrates (i) that the concept of jurisdiction under Article 1 of the Convention is essentially territorial, but (ii) that acts within the territory of the United Kingdom that cause an individual to suffer violation of his human rights outside the territory may infringe the Convention. It is a considerable extension of that principle to postulate that the Convention requires a state to take positive action to prevent, or mitigate the effects of, violations of human rights that take place outside the jurisdiction and for which the state has no responsibility.

72. In Bankovic and Others v Belgium and Others (App. No. 52207/99) [11 BHRC 435] citizens of the Federal Republic of Yugoslavia ('FRY') sought to complain to the Strasbourg Court that deaths and injuries caused by air strikes carried out by members of Nato in the course of the conflict in Kosovo violated, among others, Article 2 of the Convention. The respondent governments contended that the applicants and their deceased relatives were not at the material time within their jurisdictions, within the meaning of Article 1. The applicants argued that the very act of carrying out the air strikes was an assertion of effective control, which brought the applicants within the jurisdiction of those carrying out the strikes. They further argued that the decision to carry out the air-strikes had been taken within the territories of the respondent governments, so that the principle in Soering v UK [1989] ECHR 14038/88 was applicable.

73. As to the latter point the Court noted at paragraph 68 that:

"...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.

74. The conclusions of the Court were encapsulated in this sentence from paragraph 61 of the judgment:

"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."

75. In paragraphs 71 and 73 the Court had this to say about the circumstances in which the exercise of an extra-territorial jurisdiction would bring an act within the ambit of the Convention:

"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."

76. We derive the following principles from the decisions considered above:

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.

77. These principles come nowhere near rendering Mr Abbasi within the jurisdiction of the United Kingdom for the purposes of Article 1 on the simple ground that every state enjoys a degree of authority over its own nationals. Mr Blake has not identified any relevant control or authority exercised by the United Kingdom over Mr Abbasi in his present predicament. Nor has he identified any act of the United Kingdom government of which complaint can be made that it violates Mr Abbasi's human rights.

78. Finally in this context we should refer to the decision of the Commission in Bertrand Russell Peace Foundation v United Kingdom (2 May 1978). The applicant, which was unquestionably within the jurisdiction of the United Kingdom, complained of the failure by the British postal authorities to make representations to the Soviet authorities in respect of the interception and destruction of mail sent by the applicant to Russia. The applicant alleged that this failure violated Articles 8 and 10 of the Convention. The Commission held that the application was not admissible. The following passages from its judgment are material:

"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.

79. For these reasons we do not consider that the European Convention on Human Rights and the Human Rights Act afford any support to the contention that the Foreign Secretary owes Mr Abbasi a duty to exercise diplomacy on his behalf.

80. If Mr Blake is unable to demonstrate that, either through the incorporation of international law or under the Human Rights Act, Mr Abbasi enjoys a right to diplomatic assistance under our domestic law, do the authorities relied upon by Mr Greenwood close the door to any possibility of establishing such a right by way, as Mr Blake would contend, of a beneficial development of our public law? The authorities relied upon by Mr Greenwood, of which we have cited relevant passages at paragraphs 37 and 38 above, are powerful indeed. There are, however, three considerations which have led us to reject the proposition that there is no scope for judicial review of a refusal to render diplomatic assistance to a British subject who is suffering violation of a fundamental human right as the result of the conduct of the authorities of a foreign state.

81. The first consideration is the development of the law of judicial review in relation (i) to the doctrine of legitimate expectation and (ii) to the invasion of areas previously immune from review, such as the exercise of the prerogative.

82. As to the first, under the modern law of judicial review, the doctrine of "legitimate expectation" provides a well-established and flexible means for giving legal effect to a settled policy or practice for the exercise of an administrative discretion. The expectation may arise from an express promise or "from the existence of a regular practice which the claimant can reasonably expect to continue", per Lord Fraser, Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, 401; and see de Smith, Judicial Review 5^th Ed p.419ff. The expectation is not that the policy or practice will necessarily remain unchanged, or, if unchanged, that it will not be overridden by other policy considerations. However, so long as it remains unchanged, the subject is entitled to have it properly taken into account in considering his individual case; see de Smith pp.574-5, citing Re Findlay [1985] AC 318, 388, per Lord Scarman.

83. For the second development, it is necessary to refer to the landmark decision in Council of Civil Service Unions –v- Minister for the Civil Service [1985] AC 374 (the 'GCHQ' case), which established that the mere fact that a power derived from the Royal Prerogative did not necessarily exclude it from the scope of judicial review. The House of Lords did, however, accept that there were certain areas which remain outside the area of justiciability. Thus, at p.398, Lord Fraser referred to:

"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"

84. Lord Scarman said, at p.407, that the controlling factor in considering whether a particular exercise of prerogative power was subject to review was "not its source but its subject matter." Lord Diplock, at p.411, expanded on the categories of prerogative decision which remained unsuitable for judicial review:

"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."

85. Those extracts indicate that the issue of justiciability depends, not on general principle, but on subject matter and suitability in the particular case. That is illustrated by the subsequent case of R –v- Foreign Secretary ex p. Everett [1989] 1QB 811. This court held, following the GCHQ case, that a decision taken under the prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of that particular case. Lord Justice Taylor, at p.820, summarised the effect of the GCHQ case as making clear that the powers of the court "cannot be ousted merely by invoking the word 'prerogative'":

"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."

86. The interaction of these two developments in the law of judicial review can be seen in R –v- Home Secretary ex p. Ahmed and Patel [1998] INLR 570. The applicants were illegal immigrants who had married persons with indefinite leave to remain in the UK and had children in the UK. In support of their applications for leave to remain on the basis of their marriages, they relied on legitimate expectations created by the UK's ratification of two international conventions relating to the rights of the child and of the family. Lord Woolf MR accepted that in principle a legitimate expectation could be created by the State's act in entering into a treaty. He relied, at p.584, on the approach of the High Court of Australia in Minister for Immigration –v- Teoh [1995] 183 CLR 273:

"...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.

87. The second consideration is that, to a degree, the Foreign and Commonwealth Office have promulgated a policy which, so it seems to us, is capable of giving rise to a legitimate expectation.

88. The practice of the United Kingdom Government in respect of diplomatic protection was explained in 1999, in comments presented to the United Nations General Assembly, as part of the discussion of a report of the International Law Commission (reproduced in British Yearbook of International Law 1999 at p.526). Under the heading "Diplomatic protection: United Kingdom Practice", the paper notes that this is a matter "falling within the prerogative of the Crown" and that "there is no general legislation or case law governing this area in domestic law". It distinguishes between "formal claims" and "informal representations".

89. In relation to formal claims, "a considered statement of the Government's policy" is contained in "rules" issued by the Foreign Office, based on "general principles of customary international law". It is said, citing Mutasa v Attorney General [1980] 1 QB 114 (see below), that the rules are "a statement of general policy and have no direct effect in domestic law". We have been shown the current version of the rules (reproduced in (1988) 37 ICLQ p.1006). It is not suggested that any are directly relevant to this case, but we note rule VIII, which provides:

"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."

90. In relation to informal representations, the 1999 British Year Book of International Law records two further Ministerial statements of policy. The first refers to a "review of our policy" on making such representations about convictions and sentencing of British prisoners abroad:

"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."

91. This review was further explained in a Parliamentary Answer on 16^th December 1999 by Baroness Scotland. Having referred to the revised policy, she said:

"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)

92. Taken together, these statements indicate a clear acceptance by the government of a role in relation to protecting the rights of British citizens abroad, where there is evidence of miscarriage or denial of justice. In the present case none of the avenues suggested in the last quotation is available. The words emphasised contain no more than a commitment "to consider" making representations, which will be triggered by the "belief" that there is a breach of the international obligations. This seems to imply that such consideration will at least start from a formulated view as to whether there is such a breach, and as to the gravity of the resulting denial of rights.

93. The traditional view, repeated in the comments to the General Assembly, is that the practice reflected in these statements has no effect or relevance in domestic law, but we are not persuaded that this is correct. In this context it is relevant to give further consideration to Butt, a decision upon which, as we observed at paragraph 37, Mr Greenwood relied. In that case the applicant sought an order that the Foreign and Commonwealth Office should make representations to the President of the Yemen that a flawed criminal trial in progress in the Yemen should be halted and a retrial ordered before the verdict was given. In the leading judgment in the Court of Appeal Henry LJ recorded the following concession by the Secretary of State:

"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."

94. The leaflet referred to was one of two, which set out the assistance to be expected by British subjects abroad from a British consul. These expressly excluded intervention in a criminal trial, which was fatal to the application. But it seems to us that, in the light of the concession made by the Secretary of State it would have been difficult, in that case at least, for him to have denied that there was a legitimate expectation that such assistance as was proffered in the leaflets would be provided.

95. The published government policy in relation to consular assistance has no direct relevance to Mr Abbasi's case. We shall revert to the extent of any legitimate expectation in a case such as his after we have referred to the third consideration which weighs in favour of the possibility of judicial review.

96. In Al Adsani v United Kingdom the Government contended, as recorded at paragraph 50, that:

"There were other, traditional means of redress for wrongs of this kind available to the applicant, namely diplomatic representations or an inter-State claim."

97. In Rasul the United States District Court expressed the "serious concern" that the court's decision would leave the prisoners without any rights, and recorded the government's recognition that:

"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)

98. These statements reflect the fact that, to use the words of Everett, it must be a 'normal expectation of every citizen' that, if subjected abroad to a violation of a fundamental right, the British Government will not simply wash their hands of the matter and abandon him to his fate.

99. What then is the nature of the expectation that a British subject in the position of Mr Abbasi can legitimately hold in relation to the response of the government to a request for assistance? The policy statements that we have cited underline the very limited nature of the expectation. They indicate that where certain criteria are satisfied, the government will "consider" making representations. Whether to make any representations in a particular case, and if so in what form, is left entirely to the discretion of the Secretary of State. That gives free play to the "balance" to which Lord Diplock referred in GCHQ. The Secretary of State must be free to give full weight to foreign policy considerations, which are not justiciable. However, that does not mean the whole process is immune from judicial scrutiny. The citizen's legitimate expectation is that his request will be "considered", and that in that consideration all relevant factors will be thrown into the balance.

100. One vital factor, as the policy recognises, is the nature and extent of the injustice, which he claims to have suffered. Even where there has been a gross miscarriage of justice, there may perhaps be overriding reasons of foreign policy which may lead the Secretary of State to decline to intervene. However, unless and until he has formed some judgment as to the gravity of the miscarriage, it is impossible for that balance to be properly conducted.

101. Although Mr Blake did not rest his case on "legitimate expectation", the position as it emerges from the authorities to which we have referred seems very close to what he was ultimately contending should be the content of the "duty" which he asserts. As he said in his reply:-

"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.

102. The width of discretion enjoyed by the executive in this field is exemplified by the decision of the German Federal Constitutional Court in the case of Rudolph Hess (Case number 2 BVR4 19/80), 90 ILR 386, on which Mr Blake relied as supporting a "duty" of diplomatic protection. That concerned an application by Rudolph Hess for the Federal Republic to take diplomatic steps to secure his release on compassionate grounds, some twenty years after his imprisonment by the International Military Tribunal following the War. The court accepted that the Federal Republic were under a constitutional duty to provide diplomatic protection to German nationals, but said that the government enjoyed "wide discretion in deciding whether and in what manner to grant such protection in each case". It had to be left to the government to assess the foreign policy considerations, from the standpoint of both the interests of the Federal Republic and those of Hess, and decide on that basis how far further steps were appropriate or necessary.

103. The court rejected the application in that case, because it could not be said that the government had in any way abused its wide discretion. It is noteworthy that the court rejected the suggestion that the government should have done more to object to the detention on legal grounds, accepting that it was open to the Federal Government to consider that "the political significance of the decisions at issue was essentially more important than the effect of legal arguments on the position of the occupying powers" (pp.396-397). However, it was not suggested that the legal arguments could be ignored altogether.

104. The extreme case where judicial review would lie in relation to diplomatic protection would be if the Foreign and Commonwealth Office were, contrary to its stated practice, to refuse even to consider whether to make diplomatic representations on behalf of a subject whose fundamental rights were being violated. In such, unlikely, circumstances we consider that it would be appropriate for the court to make a mandatory order to the Foreign Secretary to give due consideration to the applicant's case.

105. Beyond this we do not believe it is possible to make general propositions. In some cases it might be reasonable to expect the Secretary of State to state the result of considering a request for assistance, in others it might not. In some cases he might be expected to give reasons for his decision, in others he might not. In some cases such reasons might be open to attack, in others they would not.

106. We would summarise our views as to what the authorities establish as follows:

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?

107. We have made clear our deep concern that, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal. However, there are a number of reasons why we consider that the applicants' claim to relief must be rejected:

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.

108. For all these reasons the application before us must be dismissed.