The use of Guantanamo Bay as an extraterritorial detention center intended to house what the United States deems as "unlawful enemy combatants" has been problematic for several reasons. First, the United States government has argued that Guantanamo exists outside of its immediate territorial sovereignty, and therefore the detainees do not have to be afforded any significant procedural and substantive legal protections under the Constitution. Second, it is unclear how and to what extent United States activities in Guantanamo Bay conform to international human rights standards. Significantly, it has been questioned whether or to what extent public international and human rights law even can be applied to Guantanamo Bay, as the detention center serves as a seemingly extraterritorial "extension" of the United States that technically falls outside of its sovereign grasp. The use of seemingly jurisdictional noman's land in which there is a definitive exercise of control by a state, but without the requisite sovereignty piece, such as with Guantanamo Bay, has caused some to suggest that these extraterritorial state activities exist in a "legal black hole." Under this notion, the detainees at Guantanamo Bay can therefore be lawfully denied basic rights and protections under public international law because they have been deemed to superficially exist outside of the responsibility of any one state. Supreme Court decisions beginning in 2004 have limited the scope of the "legal black hole" on a domestic scale, but the potency of the ambiguous nature of extraterritorial state activities has yet to be definitively resolved under international human rights law. I argue that international human rights law precludes the existence of any "legal black hole." Human rights law protects the rights and liberties of individuals purely based on their status as human beings, regardless of their location. Therefore, an individual's rights cannot be suspended. As a result, it must be the responsibility of the entity that holds custody and control over the individual to protect those rights. In order to enforce the protection of human rights, international responsibilities stemming from treaties that have solidified the individual nature of the rights must be used as an instrument for enforcement to protect the legitimacy of human rights. Specifically, in the case of Guantanamo Bay, the United States is formally obligated to uphold such individual protections due to its commitments stemming from the Third Geneva Convention of 1949, the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture (CAT).
Response or Comment
Kate Frisch, Comment, "During War, the Law is Silent," Or is it?: Examining the Legal Status of Guantanamo Bay, 15 Rich J Global L Bus 73 (2016).