Sunday, April 12, 2009

Comment on The Belmont Club,
"Then there was one pirate"


Let me push my argument on the last thread farther with a hypothetical. Let us say that the United States dispensed with the legal fiction that Somalia was a normal state with a functioning government possessing the attributes of sovereignty, including defined borders, a monopoly on violence and effective governance. At this time the United States holds that every land territory on earth outside of Antarctica, which is governed as is the Moon by a special treaty status, is part of some functioning nation state. Until fairly recent times there were three categories of territory and the inhabitants of them each were under a different status.

First were the Westphalian Nation States, responsible for their own conduct and that of their citizens. These included the European Empires, the United States, The Ottoman Empire (despite acknowledged problems) Japan, China (more problems) and Latin American countries (occasional problems.) Second were the dependancies, protectorates or colonies of the nations in the first category. To varying degrees the senior partner assumed responsibility for the conduct of these territories and of their inhabitants in international relations. For example, if a native of an Indian Princely State in treaty relationship with the British Crown got arrested in Berlin then the British embassy would see that certain basic rights were observed. The United States would I believe have been in a similar position for a member of an Native American Indian tribe before all Native American were granted citizenship. Third were wild and unclaimed territories inhabited by savages or aborigines who were outside the law of nations. There have not been any such territories that I am aware of since Africa was divided up at the Berlin Conference of 1884.

So if the United States declared that we held that Somalia had reverted to the status of unexplored Africa of 125 years ago what would change? For one thing it would change the status of Somalis who encounter the military or legal agents of another country. Right now if a Somali is in the United States they are either here pursuant to their being admitted with a visa or they are on temporary parole or they entered without inspection (EWI) but even in the last case they have some limited rights. Those rights are partly in US domestic law but also because both the United States and Somalia are signatories to treaties in which we agree to treat each others nationals with a certain level of courtesy. Right now if a police officer found a Somali in Minneapolis standing over a body with a gun in his hand the officer would be expected to politely disarm and apprehend the individual and then respond to his request for aide by putting him in touch with his country's diplomats. In fact it is now almost unheard of for a law enforcement officer to inquire as to whether a suspect is legally in the United States. If the suspect was from a country whose government we did not have relations with, like Iran or North Korea, they would still have rights and some access to a diplomat who would act in their interest. If Somalia, or some other place, was considered truly lawless then that would change. In theory the officer could determine that they had entered without inspection and that would place the alien in the status of being an invading enemy combatant who was out of uniform and therefore not subject to the protections of the Geneva Protocols. The officer could then in theory kill the alien but it would probably not be a career enhancing move.

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