Normative Puzzles of Intra- and Extraterritoriality
I want to pick up on Tim Zick’s post touching on the normative implications of territoriality. It’s clear that intraterritoriality (a nice tag coined by Kal to describe internal territorial variability in law) facilitated exploitation and imperial abuses. Guantanamo amounts to a failed intraterritorial strategy.
Those are the obvious cases. I’d be curious where Kal comes out on the closer ones, historical and contemporary, and what the metrics might be. Were the consular courts a bad thing, associated as they were with power projection and not affording defendants full constitutional protections? What would have been the alternative? Are SOFAs normatively problematic? Kal notes that the Non-Aligned Movement has condemned SOFAs, and there are obvious pathologies to the arrangements in Iraq. But with NATO partners and Japan?
I wonder if they might be defended on a self-determination rationale. If an American commits a crime against another American on foreign soil, why necessarily should the territorial sovereign be concerned, and why shouldn’t the US be allowed to resolve the matter according to its own customs? A contemporary twist on this is the debate over the application of shari’a law within Muslim communities in Europe; there are shari’a courts now operating in the UK, for example. I’m not sure where I come out on that question, but the analogy puts the question in another perspective.
(As an aside, one explanation for the shift from Ross to Reid is simple expediency. In the 1890s, it would have been tough to bring everyone home to trial at the same time that it would have been pretty tough to rouse a jury of peers in Japan. By the late 1950s, either would have been practical.)
With respect to intraterritoriality there may also be some close questions. Not applying the jury trial right to Puerto Rico has itself been justified on a self-determination basis, by way of insulating the territory’s civil law traditions. The Bill of Rights does not apply in the context of tribal governance on the same rationale (and I think with the concurrence of the tribes themselves — that is, they don’t want it to apply.) When framed in terms of community autonomy, the non-application of US law looks more benign even when it comes at the expense of individual rights. (There can also be clear advantages to variable legal geographies, as with Puerto Rico’s exemption from federal income tax.)
In short, how can we determine which departures from territoriality are justified and which are not?