Exceptionalism and Transnationalism: UK Judicial Control of the Detention of Foreign “International Terrorists”

Abstract

his recent commentary on sovereignty and the exception, the Italian philosopher Giorgio Agamben claims that the statement 'the rule lives off the exception alone' must be taken to the letter. Law is made of nothing but what it manages to capture inside itself through the inclusive exception of the exceptio: it nourishes itself on this exception and is a dead letter without it. (1) According to Agamben, this is central to understanding the nature of sovereignty: violence exercised in the state of exception clearly neither preserves nor simply posits law, but rather conserves it in suspending it and posits it in excepting itself from it.... As long as the state of exception is distinguished from the normal case, the dialectic between the violence that posits law and the violence that preserves it is not truly broken, and the sovereign decision even appears simply as the medium in which the passage from one to the other takes (2) While Agamben's vision of sovereign power holds within a Westphalian conception of the state, it no longer fully explains the relationship of the exception to sovereignty under transnational conditions. When the norms through which state sovereignty are exercised, the laws and their enforcement through the courts become subject to transnational rules, so that, for example, the equation is redefined through human rights obligations. State sovereignty no longer provides the explanation for exceptionalism and the state institutions themselves are transformed from the obedient servants of state exceptionalism into actors obliged to respect norms that transcend the national and are only tangentially subject to the sovereign Agamben's world, state institutions must protect the sovereign space of the exception against any challenges from within as well as from outside. If its institutions are in conflict among themselves about the meaning of the sovereign exception and its extent, then further refinement of theory about the nature of sovereignty is unavoidable. The autonomy of one of the state institutions, the judiciary, is especially at issue with respect to the consideration of the sovereign exception in that the space of the judiciary in relation to obedience and autonomy is structured around the laws created by other state institutions. However, into this closed system based on constitutional settlements at the national level between the people (in the form of citizens) and the rulers (in the form of democratic government) come external norms, not least in the form of human rights conventions. the case of the analysis to be developed in this article, the European Convention on Human Rights (ECHR) and its incorporation into the domestic law of the United Kingdom are the central external elements impinging on state sovereignty, judicial obedience to state interests, and the meaning of the exception in law. I argue that transnationalism in law challenges the structuring of the exception inherent in Agamben's account of sovereignty. My testing ground will be that most sensitive field of state exceptionalism--the treatment of nonnationals. Agamben ties sovereignty and constitutional settlement within the territory to the exception: In the system of the nation-state, the so-called sacred and inalienable rights of man show themselves to lack every protection and reality at the moment in which they can no longer take the form of rights belonging to citizens of a state. (3) According to Agamben, the state reveals the full power of the exception to the individual outside the reference of the state and allegiance--that is, to the foreigner. Agamben does not recognize the possibility that when an external transnational norm beyond the control of the state comes into play at the state level it can provide a mechanism of autonomy for the judiciary with respect to the protection of the noncitizen. the decision of the United Kingdom's immigration and security court (the Special Immigration Appeals Commission, or SIAC), it is at the point of the intersection of human rights, individuals, and citizens that the autonomy of the judiciary finds its place. …