Normative Puzzles of Intra- and Extraterritoriality

by Peter Spiro

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?

http://opiniojuris.org/2009/07/28/normative-puzzles-of-intra-and-extraterritoriality/

3 Responses

  1. Response… Ken’s post “Anarchy and development and the question of predatory state, sort of took my mind on another issue in the Middle East. In Jordan, today, the top issue is the government “revoking” citizenship of some of its citizens who are of Palestinian roots and still maintain some legal connection to the West Bank. The government calls its actions a “ corrective measures” that meant to implement the late King Hussein’s decision to “disengage” or more accurately “sever” all legal and administrative ties with his former territory the West Bank.( Thus allowing the PLO to have sole representation of the Palestinians) The West Bank was a Jordanian territory when it fell under Israeli occupation. UN resolution deal with it as a Jordanian occupied territory. West Bank was annexed by Jordan in 1948 following Arab-Israeli war, and all West Bank residents were declared Jordanian citizens. Can a state revoke the citizenship of its citizens despite having lived in Jordan for the past sixty years and served in the Jordanian army as full citizens? It is indeed a humanitarian issue, but I would be curious to see what would ken and Kal or others say about it.

  2. Ali, Thanks for the comment.  Jordan’s move is quite problematic, questions of territoriality aside.  There is by now a pretty clear international norm against mass denationalizations.  The politics and law here are complex (I think Jordan is justifying the move as facilitating Palestinian staehood, by depriving the Israelis of an argument that the refugees are already accounted for elsewhere).  It will be interesting how this plays out.

    There are definite applications of Kal’s thesis to citizenship status.  Citizenship practice has always had a heavy territorial element (under the rule of jus soli), but is also extraterritorially applied in many cases.  I’ll hope to do a post on the subject.

  3. Response..
    Thanks Peter, this is a heavy political issue,in addition to its legal implications, especially in Jordan where more than half of the population are originally Palestinians. i hop you do write on it  one day

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