Over at Open Geography, Jeremy has a post about ‘Juridicality and Territory’, discussing the US and a potential assassination of an American citizen thought to reside in Yemen. In the context of the ‘war on terror’, the US has long asserted that its power can extend beyond the borders of its territory, compromising the territorial sovereignty of other states in the process. Executions have happened in many places – including of course Iraq and Afghanistan, but also Yemen, Somalia, and Pakistan and quite likely elsewhere.
What I found interesting/disturbing about the US under the Bush administration was not its violation of international law – which had long been challenged or ignored – but the arguments against it. But the questions raised in this case are of long standing, and in some respects would not have been alien to the 14th century jurists like Bartolus and Baldus who did so much work on the conflict of the laws. Here is Bartolus, for example, offering a commentary on the Codex, I.1; §13. There are, for him, two key questions. First,
First, whether local legislation [statutum] extends beyond the territorium to non subjects; second, whether the effect of such legislation extends beyond the territorium of the legislator.
These seem to be the very issues at stake in this modern case – does the Constitution apply to non-citizens within US territory; and to US citizens abroad? Bartolus goes on to ask (§46):
suppose the army of one city is occupying the territorio of another and one foreigner kills another there; may he be punished by the authorities of this city?
His answer sounds very modern:
Territorium is so called from terrifying [terrendo]. So long as the army is there, terrifying and dictating to that place [terret et coercet illum locum], an offence there committed will properly be able to be punished by the authorities of the city as if it had been committed in their own territorio.
Bartolus provides a reference to the definition given by Pomponius in the Digest (L.16.239), which I quoted as one of the epigraphs to Terror and Territory.
The territorium is the sum of the lands within the boundaries of a civitas; which some say is so named because the magistrate of a place has, within its boundaries, the right of terrifying, that is summoning (or expelling).
Bartolus and his successor Baldus are discussed in some detail in chapter seven of the book I’m currently writing.