In the Shadow of Lord Haw Haw: Guantánamo Bay, Diplomatic Protection and Allegiance

Abstract

The assessment of the individual’s right to request diplomatic protection in English law in the Court of Appeal decisions in Abbasi and Al Rawi, involving detainees held in Guantanamo Bay, focused upon whether the Crown’s refusal to make formal representations to the United States Government for the claimants’ release breached their human rights. This article reassesses the dismissal of these claims in light of the correlation between allegiance and protection underpinning the law of treason, and in particular in light of the extended concept of allegiance recognized by the House of Lords in Joyce v DPP. If the British residents who were detained in Guantanamo Bay owed the same degree of allegiance to the Crown as British nationals, the government should have extended diplomatic protection to both groups on an equal basis.