Guantánamo Bay: Towards Legality?

Authors

  • Fiona De Londras

    1. Lecturer, Department and Faculty of Law, University College Cork
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    • a Lecturer, Department and Faculty of Law, University College Cork. Earlier versions of this paper were presented at the SLSA Annual Meeting, Kent University (2007), the International Graduate Legal Research Conference, King's College London (2007), the Postgraduate Conference on Criminal Justice and Human Rights, University College Cork (2007) and the SLS Annual Meeting, Durham University (2007). My thanks for comments received from fellow panellists and others at these conferences and for comments on an earlier draft from Máiréad Enright, although the usual disclaimer applies. The paper draws on research which is generously funded by the National University of Ireland and by the President's Office, UCC.


Abstract

This article outlines the US Supreme Court's approach to the habeas corpus entitlements of suspected terrorists detained in Guantánamo Bay and argues for the extension of constitutional habeas corpus rights to them. The article considers two ways in which the Supreme Court might carry out this task: first, ‘the territorial approach’ (based on domestic legal principles of ‘unincorporated territories’ and principles of leasehold), and secondly, ‘the extraterritorial approach’ (based on international purposive approaches to the reach of human rights treaties exemplified by the European Court of Human Rights' Article 1 jurisprudence). For reasons of effectiveness of protection, the Article expresses a clear preference for the latter. The House of Lords decision in R (Al-Skeini) v Secretary of State for Defence (2007) is proposed as a template for such a development. Finally the article refutes arguments rejecting such a development based on the ‘trade-off thesis’ and perceptions of judicial competence.

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