Sunday, October 11, 2009
Part II examines the evolving jurisprudence of extraterritorial rights in three jurisdictions in light of these models: the United States under the U.S. Constitution, Canada under the Canadian Charter of Rights and Freedoms, and the United Kingdom under the U.K. Human Rights Act. These three characterizations of ways of thinking about the extraterritorial application of domestic rights regimes (compact, conscience, and code) can provide a convenient vocabulary for describing how domestic courts reason about specific challenges to government action beyond national borders. They can also help us think more systematically about how courts and other actors should reason about rights beyond borders, as governments bring their coercive power to bear on individuals in a variety of extraterritorial circumstances.
Burgeoning scholarly interest in comparative constitutional law, transnational criminal law, and national security law has generated surprisingly little synthesis among these fields. The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article addresses this gap by developing a conceptual framework for thinking about the extraterritorial application of domestic rights guarantees, with a focus on cases arising from the detention and interrogation of terrorism suspects. Part I identifies three modes of reasoning about rights beyond borders, which I label constitution as compact, constitution as conscience, and constitution as code. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her personal status and/or territorial presence. Conscience-based reasoning focuses the government’s mandate to act solely in accordance with a defined set of national values in all locations and circumstances. Code-based reasoning takes a strictly territorial approach to restrictions on government action outside the national territory, even vis-à-vis citizens.