On the Water's Edge? A Comparative Study of the Influence of International Law and the Extraterritorial Reach of Domestic Laws in the War on Terror Jurisprudence

The advent of global counterterrorism operations following the attacks of September 11, 2001 on the United States and the subsequent invasion of Iraq by a U.S.-led multinational coalition have presented domestic courts in most democratic nations with complex questions regarding the legality of their governments’ participation in the so-called “war on terror.” While the conduct of the war raises important substantive issues involving the capture, detention, transfer, and trial of terrorist suspects, this article is most interested in the process of judicial reasoning that has empowered domestic courts in three common law countries — the United States, Canada, and Britain — to impose limits on their national executives’ claims of exclusive authority in this area. In particular, this article seeks to determine how international legal norms have informed and shaped domestic terrorism jurisprudence. First, it compares the willingness of national courts to consider international law in their deliberations either as a source of substantive rights or as an interpretive aid. Second, it compares the extent to which national judges have been willing to reach beyond state borders in order to enforce domestic constitutional or statutory rules relating to the conduct of state agents, and to secure the latter’s compliance with human rights norms abroad. The analysis is organized in four parts. The first three sections describe the state of the law in each jurisdiction. Part I discusses the leading U.S. case law, with a focus on Boumediene v. Bush. Part II examines the jurisprudence of the Canadian Supreme Court in R. v. Hape and Canada (Justice) v. Khadr, while Part III reviews the decisions of the British House of Lords in Abbasi v. Secretary of State for Foreign and Commonwealth Affairs and Al-Skeini v. Secretary of State for Defence in light of the extraterritoriality doctrine of the European Court of Human Rights. Part IV concludes with a side-by-side comparison of the case law in order to highlight the differences and similarities in these three common law jurisdictions’ engagement with the politically charged subject of protection of fundamental human rights in counterterrorism operations. The analysis reveals considerable differences between U.S. courts on the one hand and Canadian and U.K. courts on the other in terms of their receptiveness to international law, with the former showing greater reluctance to consider international norms expressly. The readiness of Canadian and U.K. courts to adjudicate extraterritorially in the area of human rights is no less surprising given the traditional judicial aversion in these countries to the extraterritorial exercise of criminal jurisdiction, which has typically been reserved for the most exceptional cases. Overall, as this article finds, national courts employed different tools to analyze rights claims in antiterrorism cases and chose different methods of enforcement — by importing international standards into domestic law or exporting constitutional norms extraterritorially. They did so, however, in the pursuit of a common end: declaring that the conduct of the war on terror abroad is not beyond the reach of judicial review.

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