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By Jeffrey L. Jowell, Jonathan Cooper

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With reference to Johnson v. Eisentrager,125 the right of access to the courts of the United States was said to be predicated upon the presence of a person within territory under United States sovereignty. The California Court followed the decision of the Eleventh Circuit of the United States Court of Appeals in Cuban American Bar Association v. Christopher 126 holding that Cuban and Haitian migrants temporarily detained at Guantanamo Bay could not assert rights under the United States Constitution inter alia because Guantanamo Bay was not United States sovereign territory.

951 (29 September 1999); and see Theodore Meron, “Extraterritoriality of Human Rights Treaties” (1995) 89 AJIL 78 at 79. 77 Reach of the HRA: Jurisdictional Scope  State. 80 Following this account of the Strasbourg jurisprudence on the jurisdiction question, the Court rejected the applicants’ suggestion that the concept of “effective control” could be extended to an obligation upon contracting parties to secure the Convention rights in a manner proportionate to the level of control exercised in any given extraterritorial situation.

Soering, above n 56 para 86. [2002] EWCA Civ 1856, [2003] 1 WLR 770 at para 63 and see 39, 61–63. [2003] EWCA Civ 840 at para 17. Reach of the HRA: Jurisdictional Scope  effect on physical and mental integrity, even if it fell short of Article 3, could in principle engage the responsibility of the expelling state under Article 8, provided that the claim met a threefold test as to the nature of the harm apprehended, the severity of such harm and the likelihood of the harm eventuating. The Court pointed out that even if a removal case engages Article 8(1), a claim could nevertheless be defeated by Article 8(2) considerations (paragraphs 25–27).

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