Delivering Rights: How the Human Rights Act Is Working (The by Jeffrey L. Jowell, Jonathan Cooper

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By Jeffrey L. Jowell, Jonathan Cooper

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3. Where, under principles of international law, a state enjoys extraterritorial 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. Under none of these principles, held the Court, could Mr Abbasi, albeit a British national, claim to fall within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention.

In determining whether a particular interpretation is “possible”, to what extent should the court defer to the will of Parliament in enacting the legislation in the terms in which it did? Is it preferable, in any given case, for the court to allow a public authority to rely on the section 6(2)(b) defence and to make a section 4 declaration of incompatibility, or should it instead give the legislation at issue a more generous (and possibly more strained) interpretation to render it compatible with the Convention?

V. USA. The American cases are briefly considered by the Court of Appeal in R v. Secretary of State for Foreign and Commonwealth Affairs ex parte Abbasi at paragraphs 12–15. 128 A principled guide to the circumstances in which the HRA should be applied beyond the borders of the United Kingdom is to be found in the concept of mutuality articulated by Brennan J in his dissent in the Verdugo-Urquidez case. Its relevance to the international rule of law in the world in which we now live is stark: Mutuality .

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