Kal Raustiala review

Raustiala presents two chief arguments about the geographic scope of American law:

1. One argument deals with extraterritoriality which he argues can come in many different forms, but in these forms we see common themes: efforts to manage, minimize, or sometimes capitalize on legal differences abroad.

2. The second argument deals with intraterritoriality, which has long been a way for American law to facilitate the growth and power of the United States. Only a limited set of rights have applied in other U.S. territory. The map of American law is larger than the map of American territory Raustiala argues. But, the map of legal rights is smaller than the map of American territory.

In order to understand these two principles, one must understand doctrines of territoriality that extend all the way back to the Peace of Westphalia in 1648. Some of these doctrines include that a sovereign state within documented borders is controlled and governed by its own set of principles. This is an ideal of long standing, but today states are increasingly subject to scrutiny from the outside world, Raustiala argues.

Extraterritoriality:

As the United States grew larger, extraterritoriality became the way for the United States to "project a small realm of domestic law into a (weaker) foreign power's territory as a way to inoculate one's citizens against the strange, the different, and the dangerous." (21)

Intraterritoriality:

U.S. law has differed depending on place. The supreme court has long held that Constitutional protections do not extend abroad (Insular Cases). Then, during the Cold war, Americans and other Aliens were protected by the Bill of Rights against federal action even when overseas - a more universal conception of Constitutional rights. Then in 1990, a more Westphalian or "traditional" view of territoriality was taken by the American executive branch; it denied the protections of the Fourth Amendment to foreign criminals searched by American agents abroad. Thus, American allies were more likely to be the focus of postwar regulatory and military jurisdiction. (i.e., in Iraq, Afghanistan, etc.)

Main Argument:

From the 19th century to present day, the executive branch has looked at traditional sovereign principles to justify lack of full constitutional rights for overseas citizens/Aliens in American "territories." Their (Aliens') geographic location decisively determines the bundle of rights they enjoy.

In our current state of affairs, the reality of constitutional rights abroad is, "the Constitution only partly follows the flag."

Since the human rights' revolution after 1945, traditional notions of sovereignty have eroded. A new conception of sovereignty puts the rights of individuals above state sovereignty. Thus, the United States has attempted to use this "absence" of state sovereignty to gain greater leeway to detain and punish for the benefit of its self-interests. To argue that the Constitution does not apply as long as the executive branch is careful to act only in particular offshore places, strikes many Americans as a startling claim.

Critique to the orthodox view:

Some advocates for human rights' argue that when the Bill of Rights was written, the word "person" rather than "citizen" was deliberate. Also the absence of any geographical limitations for the Constitution was absent in the Bill of Rights. These arguments are valid in the sense that "person" was a deliberate choice, and a geographical limitation was not present, but not for the benefit of human rights'; rather these details of the Bill of Rights are in order to protect the self-interests of the executive branch of the United States.