Habeas corpus

It is now necessary to address the accountability of the state for its actions abroad, where these affect the liberty or human rights of the individual. This is a question that has gained urgency and focus in recent years following the adoption in three of the four Anglo-Commonwealth states of domestic human rights standards. But in fact the scope of the power of the judiciary to control foreign exercises of executive power affecting the liberty of the individual has been considered over a much longer period in the context of the ancient writ of habeas corpus, developed at least since Magna Carta to ensure judicial control over executive detention. It continues to be a central protection of individual liberty, based on the common law (even if now supported in its procedural aspects by statute) in all four Anglo-Commonwealth states. In Canada and New Zealand, the availability of the writ has been further confirmed by its inclusion in the domestic bills of rights. In Australia, Brennan J observed in the High Court of the writ of habeas corpus:

This chapter will therefore consider, first, the scope of habeas corpus in relation to external exercises of executive detention; and then, second, the somewhat larger set of issues now raised as to the reach of human rights standards to executive conduct abroad. In both cases, it will be argued that the reach of the law is not determined either by citizenship or by the extent of territorial jurisdiction. On the contrary, the authorities in both contexts support the proposition that it is the extent of the exercise of effective control in fact by the executive that determines the scope of the protection of the law.