re: "What is De Facto Sovereignty?"

Roger Alford at Opinio Juris ("A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics") has developed several interpretation models that may have significant inpact in the future.


Money quote(s):

"I see several possible interpretations of de facto sovereignty based on my reading of Boumediene: (1) the territorial model; (2) the occupation zone model; (3) the military base model; (4) the effective control model; (5) the physical custody model; and (6) the exercise of power model.

The territorial model. First, de facto sovereignty could mean something quite narrow. The narrowest reading of de facto sovereignty would emphasize that Guantanamo is almost unique in that it effectively falls within the territory of the United States but for the fact that Cuba retains ultimate de jure sovereignty. Under this definition, Guantanamo Bay would constitute a data set of one.

The occupation zone model. A second definition would focus on all territories that the United States physically occupies and controls. This would encompass a much broader category of territory, including the American zone in Germany after the Second World War and arguably all of Iraq during the period when Iraq was governed by the Coalition Provisional Authority. It also would apply to the Green Zone today.

The military base model. A third definition would focus on the individual facilities that we occupy and control subject to lease agreements with other nations. Under this definition the Constitution would extend to any alien physically located in any United States military base anywhere in the world. It also would extend to aliens held in any United States prison, barracks, or detention facility anywhere in the world that is within the practical control of the United States.

The effective control model. A fourth definition is even broader and would emphasize effective control of a detention facility. The Court emphasized that “Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.” So the Constitution would apply if the United States exercised effective control over a detention facility even though the detainees are held by coalition forces or military personnel from other nations pursuant to an agreement with the Untied States.

The physical custody model. A fifth possible definition of de facto sovereignty would emphasize physical custody over the person rather than the territory. This definition would essentially define de facto sovereignty as equivalent to control over the individual’s physical movement. If a person has been arrested and his movement is forcibly circumscribed by United States authorities, then the United States is exercising control over that person and the Constitution applies to their conduct.

The exercise of power model. The broadest possible definition of de facto sovereignty is that the Constitution applies to noncitizens abroad any time the United States exercises authority over those individuals. This definition parallels Justice Brennan’s dissent in Verdugo-Urquidez: If the Constitution authorizes our Government to enforce our laws abroad, then when the Government agents exercise this authority, the Constitution travels with them. Under this definition, the Constitution is an unavoidable correlative of the Government's power to enforce the law."

It's quite scary that law professors think like this, since supreme court justices apparently think along much the same lines.