In the status quo, law is based on norms of territoriality and national sovereignty. Although international institutions like the UN exist, their primary goal is to maintain the Westphalian system of nation-states, and their legal authority is contingent on political brinkmanship. However, that idea of national jurisdiction is increasingly problematic: from transnational corporations and crimes in international waters to the laws of space and the Internet, the legal inadequacy of territoriality threatens to leave many problems unaddressed. K.F. Aas explains the stakes:

The point here is that sharp distinctions between the domestic and the international matters are in themselves becoming a major source of injustice. An important dilemma for critical criminology is therefore whether, in the face of global transformations, to defend the embattled territorial nation-state, or whether to transcend the nation-state order and to include in its repertoire of outsider also the ‘global others’. The question of framing and boundary setting is of crucial importance as it can exclude large groups of individuals from participating in a political community and designate them as non-persons with respect to justice. If we are to grasp, and challenge, the major sources of social injustice today, we need to move beyond the state-territorial principle (Benhabib, 2004; Fraser, 2005; Morrison, 2006). When the major sources of injustice belong to the ‘space of flows’, ‘they cannot be made answerable to claims of justice that are framed in terms of the state- territorial principle’ (Fraser, 2005: 81). This should apply to a variety of issues, many of which tend to be mentioned as criminological blind spots, such as the global criminal economy, corporate crime, state crime, corruption, environmental crime, as well as the so-called ‘secret renditions’ and the use of torture in the war on terror, cyber crime and genocide.

Thus, the system of territoriality is more than just inadequate; it is disastrous for the “global others” caught in the cracks between nation-states. For instance, the murders of over 1,000 Mexican women involved in border crossings near Ciudad Juarez were committed due to the jurisdictional aporia of even a commonly patrolled and recognized border.

The international humanitarian efforts aimed at redressing such injustices are themselves legally problematic, because they entail the intervention of a state and its citizens on behalf of the citizens of another state. Goodman writes:

Moreover, the function of the police to work within the breaches of the law is facilitated even more outside of the national context. As police sociologist J. W. E. Sheptycki has pointed out, though "policing is intimately bound up with the imposition of the nation-state system" (1995, 615), international policing corresponds to the "erosion and diminution of the state system" (616). "Where once borderlines on maps held an abstract solidity seemingly more firm than the border guards that policed them," Sheptycki goes on, "our current discourses reveal a concern about interstitial spaces between governed territories" (630). Sheptycki further notes that this transformation—from a power defined by the nation-state's need for violence to a power defined as postnational—comes with various technical and procedural changes in enforcement, where the cop on the beat is replaced by the systems analyst; the computer technician; the knowledge worker; the information manager; and the Internet researcher, like Katz. The 9/11 Commission celebrates that the security offices, judicial concerns, and social controls through which national identities are defined and interpreted under a liberal state are now exported out of state, alongside the proliferation of military bases, commercial market growth, and security measures. Authorizing the imperial extension of criminal punishment as unrestricted by law, this idea of the criminal announces the beginning of the nation in the end of national law. The internationalization of policing corresponds to the end of the nation as the legal guarantor of human rights .

Thus, military attempts in the resolution of trans-border issues only exacerbate the dangers of territoriality. As peacekeeping operations proliferate, populations will find themselves guarded or threatened by foreign forces operating locally but subject to entirely distinct legal codes, often with immunity. The collision of foreign and domestic law is the unresolved question at the base of international jurisprudence, and threatens to produce countless garrisons of extraterritoriality wherein law is suspended and indeterminate, and only violence reigns. Koh agrees:

In the age of global optimism, we marveled at the potential of the growing global network of information, trade, and transportation to create genuinely global solutions to global problems. But then we learned that the same coin has a dark side: that terrorists can exploit that same interconnectedness to turn airplanes into missiles, to use the global financial system to move money across borders, to turn ordinary mail into a delivery system for biological weapons, and to plant viruses into email as a tool for cyberterrorism. Since September[9]11, we have almost literally left the light and entered the shadows of a new age of global pessimism, in which we have realized with alarm that all of the interdependent dimensions of the age of globalization could be equally turned against us.

Transnational problems require transnational solutions, but effective government action must be rooted in law to ensure that it is not corrupted, applied arbitrarily, or abused. Asymmetric strategies demand a resolute understanding of the relation between national and international law, so that responses can be grounded in democratic tradition and not ad hoc lawyering that undermines the rule of law. In an interdependent world faced with global crises, territoriality exacerbates the problem. Gillespie writes:

A major component of the traditional doctrine of state sovereignty is the principle of non-intervention in a state’s internal affairs. Before the advent of the United Nations “human rights regime,” “what went on within one state’s own borders was effectively no one else’s affair.” Resistance to diminution of this principle explains in part why, for example, the international community responded so forcefully against Saddam Hussein when he conquered Kuwait but did not intervene in the past when he killed thousands of his citizens with poison gas. This propensity also helps explain why the international response to the post-Gulf war domestic repression of Iraqi Kurds and Shia Muslims was so hesitant. The Gulf war “U.N. coalition” punished Iraq’s international misbehavior, but internal genocide was mostly ignored, as it was perceived to be a domestic matter.”

Because the traditional distinction between a state’s legal inside and outside is fast becoming irrelevant, it is critical that the US engage in projects to update domestic law and bring it into contest as well as agreement with international law.

American submission to the ICC would force the U.S. to realign its policies to interact with international law; the Rome Statute is a “stress test” of domestic law with relation to international law, and American ratification would contribute to the development of doctrines and methods that are fundamental to global jurisprudence in a globalized world. Benvenisti writes:

Thus, we are witnessing the emergence of transnational checks and balances. As the state "disaggregates," the traditional maps of domestic checks and balances are also redrawn in the never-ending struggle to govern and to review government. In an era of interdependency, both the national government and the national court must forge coalitions across national boundaries to remain effective domestically. The redrawn institutional maps of checks and balances use the language of foreign and international law. Courts rely on this language to facilitate communications; governments use international law, international bureaucracies, international judicial institutions, and informal means of coordination to concretize their understandings and to reduce the discretion of their own courts.

Thus, American submission to the ICC is not merely participation in an external organization; the judicial incorporation of the Rome Statute forces U.S. jurisprudence to see itself as part of a larger supranational system and develop much-needed legal theory in that domain. Keohane writes:

What distinguishes legalized regimes is their potential for setting in motion a distinctive dynamic built on precedent, in which decisions on a small number of specific disputes create law that may govern by analogy a vast array of future practices. This may be true even when the first litigants in a given area do not gain satisfaction. Judges may adopt modes of reasoning that assure individual litigants that their arguments have been heard and responded to, even if they have not won the day in a particular case. Some legal scholars argue that this ‘‘casuistic’’ style helps urge litigants, whether states or individuals, to fight another day.5Although both interstate and transnational dispute resolution have the potential to generate such a legal evolution, we maintain that transnational dispute resolution increases the potential for such dynamics of precedent.

US submission to the ICC would send a fundamental shock through the legal community, because ideas about the origins of rights, the nature of appeals, the sources of authority, and the power of the constitution would need to be raised in relation to the imposition of a complementarity scheme. Judges, attorneys, and legal theorists would be compelled to study and test the possibility for integration of international and US law. Spiro writes:

Federal judges may define their peer group to include foreign and international jurists, as a result of increasingly structured contacts with those counterparts. This identification gives U.S. judges an incentive to act in a way that will enhance their reputation with those groups. The incentive can play out at the level of individual contact; judges will naturally want to garner respect rather than opprobrium when they find themselves, on a repeat basis, interacting with non-U.S. judges. To the extent that judging involves dialogue among courts—with citation frequencies as a measurement of both individual and institutional reputation—federal judges may come increasingly to value the attention of foreign and international tribunals. On both counts, the interests of federal judges will be served by the deployment of international law norms. Recognition is, first of all, a two-way street, especially among those who are not assigned a formal hierarchical relationship. Foreign and international tribunals are more likely to take notice of U.S. judicial decisions to the extent U.S. judges take notice of them. Second, U.S. jurists have lagged in their comfort with and use of comparative and international law sources relative to their non-U.S. counterparts. In the context of twentieth-century America, that was never a problem; indeed, it may have been a badge. U.S. judges may be more responsive to the harsh critiques launched by global jurists highlighting the failure of U.S. courts to take account of international law.

The result is not a direct importation of foreign law but a strengthening of US code as our laws and their relation to the constitution are reasserted in fundamentally new ways that incorporate a compatibility with international law, such as the legal definitions of ICC crimes or evidentiary provisions. Abstaining from the international court threatens to leave the US as a legally isolationist power bound to arcane notions of territoriality, with little influence on global jurisprudence. Koh-2 agrees:

In the international realm, as in the domestic realm, most compliance with law comes from obedience, or norm-internalization, the process by which domestic legal systems incorporate international rules into domestic law or norms. Under this view, the key to understanding whether nations will obey international law, I have argued, is transnational legal process: the process by which public and private actors--namely, nation states, corporations, international organizations, and [NGOs] nongovernmental organizations--interact in a variety of fora to make, interpret, enforce, and ultimately internalize rules of international law. (70) The key elements of this approach are interaction, interpretation, and internalization. Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states.

International court structures play a significant role in this transformation, especially given the permanent status of the ICC versus the status quo system of ad hoc tribunals, which cede more ground to national borders. Although complementarity seems to emphasize national borders, it is a radical departure from status quo’s unreflective and exclusive focus on territoriality. In this sense, the ICC is a truly international court with the potential to develop international laws and norms. Despite the existence of geographical borders in the affirmative world, the injustice of grave crimes has no borders for the ICC. Ralph concludes:

The Rome Statute identiﬁes standards of humanity and puts in place a system of justice that will reinforce those standards by punishing those who violate them. That system of justice can conceivably bypass the society of states when states fail to uphold international criminal law. In this regard the Statute is revolutionary and as Mégret points out, the year 1998 may become as signiﬁcant as 1648 in the history of global politics.The Rome Statute,he writes,‘might well one day precipitate a revolution of Westphalian proportions which, although it may not do away with the state system, would certainly rest its legitimacy on an entirely different footing’.86 The analysis offered here stresses two important points that are implicit in this conclusion. By setting up a judicial system that is comple- mentary to the state system and by recognising the signiﬁcant contribution that the society of states can make to international peace and security, the Rome Statute promises to encourage evolutionary change as much as it threatens to transcend international society. Such a conclusion should strengthen the Kantian description of the Statute. The persistence of state sovereignty however, and this is the second point, has weakened the Court’s jurisdiction and its ability to prosecute. To legal idealists this is a source of disappointment and continuing frustration. While this should not disguise the fact that the Court is still a remarkable achievement it does demonstrate that the Court’s immediate future is heavily contingent on state support.

American ratification of the Rome Statute would commit the world’s deepest jurisprudence to more effectively address the problems of territoriality from within global governance structures, so I affirm.

Katja Franko Aas (University of Oslo, Norway). “Analyising a world in motion: Global flows meet ‘criminology of the other.’” Theoretical Criminology 2007; 11; 283.

Harold Koh. “On American Exceptionalism.” Stanford L. R. 55.5 (2003). Accessed online through Questia.

Gillespie, Thomas R. “Unwanted Responsibility: Humanitarian Military Intervention to Advance Human Rights.” Peace and Change, Vol. 18 No. 3, July 1993, pp. 219-246.

Eyal Benvenisti (Professor of Law, Tel Aviv University). “Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts.” 102 A.J.I.L. 241. 2008.

Robert Keohane, Andrew Moravcsik, Anne-Marie Slaughter. “Legalized Dispute Resolution: Interstate and Transnational.” International Organization 54, 3, Summer 2000, pp. 457-488.

Peter J. Spiro. “Disaggregating U.S. Interests in International Law.” Law and Contemporary Problems. Vol. 67:195. 2004.

Jason Ralph. “International society, the ICC, and American foreign policy.” Review of Int’l Studies (2005), 31, 27-44.

Trinity Prep	Borders AC	1/1

Jake Nebel

2009-05-04

Trinity Preparatory School