nationalsecuritylaw forthcoming scholarship

May 11, 2011

* forthcoming scholarship

Empire and Extraterritoriality in 20th Century America

Southwestern Law Review, Forthcoming
Kal Raustiala (UCLA)

Powerful nations have long sought empires. The United States is no exception, though its imperial experience is distinctive. In this brief essay I examine the American approach to empire in the 20th century. In the early years of the century the U.S. experienced a brief burst of traditional empire-building. By the Second World War, however, American leaders for the most part foreswore traditional empire, even as the nation became a superpower with global reach and ambition. They instead pioneered a new form of political dominance, which produced many of the effects of empire in a different form. This new form of empire had several important features, but the key was that it was essentially extraterritorial in nature.

Traditional empires controlled territory directly or indirectly; that control was reflected in maps that showed, for example, the territorial holdings of the British Empire in red. The postwar American empire, by contrast, projected national power outward without controlling foreign territory directly. It was predicated not on territorial control but on extraterritorial power and presence. Through military bases sited on the territories of other states, the extension of domestic statutes overseas, and a web of multilateral institutions that embedded and extended American power while creating a favorable environment for American firms, the US achieved many of the ends of empire without the form. The unusual structure of postwar order the United States created and led reflected the nation’s newfound superpower status after 1945. It was, in many respects, an “empire by invitation,” since it was welcomed by many states around the world. But it was also consistent with a wide range of constitutional concerns that had arisen in the Theodore Roosevelt and Taft administrations, largely stemming from the acquisition of the Philippine Islands from Spain. An extraterritorial empire proved more comfortable fit with our constitutional framework, and with our political interests, than traditional territorial empire.

"William Patrick and ‘Crimes Against Peace’ at the Tokyo Tribunal, 1946-1948"

The Edinburgh Law Review, Vol. 15, No. 2, pp. 166-196, 2011

KIRSTEN SELLARS, affiliation not provided to SSRN
Email: kirsten.sellars

After the Second World War, the victorious allies convened the International Military Tribunal for the Far East to punish Japan’s leaders for crimes against peace and other war-related crimes. The crimes against peace charge had proved controversial at the Nuremberg Tribunal, and the sponsoring powers made considerable efforts to ensure that the Tokyo judgment reinforced the Nuremberg determination. The scope and significance of these efforts has been largely unacknowledged, as has the central role in them of the British member of the court, William Patrick, a Senator of Scotland’s College of Justice. Patrick’s role demands closer examination because it proved crucial to the judgment at Tokyo. He campaigned for unalloyed support for the main tenets of the Nuremberg Judgment, and when that support was not forthcoming, helped to forge a majority faction to ensure that they were not abandoned. Finally, and most importantly, he insisted that crimes against peace and conspiracy to commit them were retained as the central elements of the majority’s judgment.

"’So Vast an Area of Legal Irresponsibility?’ The Superior Orders Defense and Good Faith Reliance on Advice of Counsel"

Columbia Law Review, Vol. 111, p. 574, 2011

MARK HOBEL, affiliation not provided to SSRN
Email: mark.hobel

This Note argues that the modern superior orders defense represents the most relevant and just paradigm for assessing the potential criminal liability of U.S. interrogators who claim that they were authorized and counseled by government lawyers prior to using techniques that likely constituted torture. However, recent U.S. law, most importantly sections of the Detainee Treatment Act of 2005, constitutes an extension of the superior orders defense as it would apply to interrogators, and may not only fully immunize government officials and agents involved in interrogations, but also disrupt emerging international legal norms surrounding the superior orders defense.

Part I of the Note discusses the development of the modern superior orders defense in international law and its general incorporation into national military laws, including the Uniform Code of Military Justice. Part II analyzes recent U.S. law and practice and concludes that it may deviate from the international legal standard for the superior orders defense. Part III suggests means through which U.S. practice may be brought back into conformity with the international standard, while at the same time contributing to its positive development.

"The Aggression Amendments: Points of Consensus and Dissension"

Santa Clara University Legal Studies Research Paper No. 7-11

BETH VAN SCHAACK, Santa Clara University – School of Law
Email: BVanSchaack

This paper encapsulates remarks made at the Annual Meeting of the American Society of International Law on a panel devoted to considering the new amendments to the ICC Statute adding the crime of aggression to the Court’s subject matter jurisdiction. It addresses the interpretive understandings adopted at the Review Conference in Kampala Uganda vis-a-vis the definition of the crime, the negotiations surrounding the crime’s jurisdictional regime, and lingering confusion over the way in which the ICC Statute’s amendment provisions should apply to the codification of the crime of aggression. The paper argues that the plain language reading of Article 121(5) should govern the question of when states parties are "bound" by the amendments such that the Court can prosecute the crime when committed by their nationals or on their territories.