Roger Hertog Program on Law and National Security
Human Rights Institute
This Essay explores the role of "embedded" international law in U.S. constitutional interpretation, in the context of extraterritorial application of the Constitution. Traditional U.S. understandings of the Constitution's application abroad were informed by nineteenth-century international law principles of jurisdiction, which largely limited the authority of a sovereign state to its geographic territory. Both international law and constitutional law since have developed significantly away from strictly territorial understandings of governmental authority, however. Modern international law principles of jurisdiction and state responsibility now recognize that states legitimately may exercise power in a number of extraterritorial contexts, and that legal obligations may apply to situations abroad over which states exercise "effective control." International bodies, including the European Court of Human Rights, have applied the principle of effective control to constrain state conduct abroad. Prior to the Supreme Court's decision in Boumediene, however, embedded international norms had produced a bifurcated approach to the extraterritorial Constitution. Rules governing the Constitution's application to U.S. nationals abroad reflected an evolutionary relationship between international and constitutional norms, evolving largely in concert with modern international doctrines. The United States, however, asserted an entrenched approach to the Constitution's extraterritorial application to aliens, that continued to be dictated by antiquated, territorial conceptions of international jurisdiction. In adopting a functional approach to extraterritoriality in Boumediene, the Supreme Court abandoned formalistic limits on the Constitution's application based on formal sovereignty or citizenship, and returned to an evolutionary framework. Much work remains to be done in elaborating on the Boumediene test and applying it to particular constitutional provisions and contexts. But the Court's evolutionary approach opened a space for aligning U.S. domestic obligations more closely to contemporary international legal approaches, the expectations and obligations of our allies, and the modern realities of the exercise of state power.
Sarah H. Cleveland,
Embedded International Law and the Constitution Abroad,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/24