Global democracy and global distributive justice are partners in the same larger cosmopolitan political project. Each valuable in its own right, from a cosmopolitan point of view. They are also linked: when the underprivileged ‘many’ are given a vote, they are likely to use it to secure a larger and more just distributive share. That was how democratic socialism worked domestically. ‘Politics’ was set ‘against markets’ (Esping-Andersen Reference Esping-Andersen1985) by creating a new currency, the vote, that (a) was distributed more equally than money and that (b) could be used to override market outcomes based on financial privilege. Cosmopolitanisms hope that global democracy might underwrite global distributive justice in similar fashion.
Global democracy might take many forms, and in the beginning it will inevitably start small. Various proposals have been canvassed (e.g. Held Reference Held1995; Archibugi Reference Archibugi2008; Goodin Reference Goodin2010, Reference Goodin2013). Here is another. Forget about pressing straightaway for a world government, democratic in form. Try, instead, to turn already existing national-level democracies to more cosmopolitan purposes. Do that by allowing foreigners to vote in our national elections. Suppose that everyone worldwide had a vote in every nation’s democratic elections. That would be functionally equivalent, at least for a great many purposes, to everyone’s having a vote in a unitary democratic world government.
That approach is appealing, not only because it relies only on institutions that are already in place, but also because it is arguably what classical democratic theory anyway requires. The most ‘intuitively plausible proposal’ for determining who should get a vote says that everyone who is affected by a decision should get a say in the making of that decision.Footnote 1 Dahl (Reference Dahl1970, 64), the doyen of democratic theorists, calls that ‘the best general principle of inclusion that you are likely to find’. And of course in an interdependent world, pretty much everyone is affected in some way or another by just about every major decision made anywhere, certainly anyway those made in rich and powerful states. Combine that contingent fact about the world with the All Affected Principle for who should get to vote, and you have a case for giving just about everyone in the world a vote, if not quite everywhere, at least in all major states of the world (Goodin Reference Goodin2007).
Anti-cosmopolitans wanting to resist those expansionary implications of democratic theory can do so in either of two ways. One simply denies that there are any principled grounds in democratic theory or anywhere else for how to constitute the polity. The electorate is as it is, and there is no right or wrong of that matter. But that is an uncomfortably unprincipled approach, even for most hard-bitten political realists. It denies that any extension of the franchise – from the propertied elite to all males, to all women, to all races – ever had any principled grounding. That is an awfully big bullet to bite.
More moderate anti-cosmopolitans hope to rely instead on a more principled rationale for keeping the franchise broadly within its current bounds. They propose an All Subjected Principle for political enfranchisement. They do so on the assumption that those who are ‘subject’ to a state’s laws, and thus entitled to a vote under that principle, will be a smaller set of people (and more nearly the same as the current citizenry) than the set of people who are ‘affected’ by a state’s laws and who would be entitled to a vote under the cosmopolitans’ All Affected Principle.
But as I shall show, vast numbers of non-nationals abroad are subject to the laws of a great many states not their own. States claim jurisdiction over a wide range of people and activities, on a variety of grounds discussed in the central sections of this article. Sometimes those claims seem well grounded, other times perhaps less so. Still, as long as states continue to claim broad jurisdiction in the ways that they do, the All Subjected Principle, just as surely as the All Affected Principle, requires that they permit a vast number of foreigners to vote in their elections.
Alternative grounds for political inclusion
What constitutes The People who are supposed to govern themselves democratically? Some commentators take that as being exogenously given. They suppose that the composition of the demos is dictated by some brute fact – of blood or soil or history or identity – that is, prior to and independent of any argument for democratizing the polity thus constituted.
That approach has the comforting consequence of broadly fitting the world as we find it.Footnote 2 But that approach provides no principled basis for determining who should be governed with whom and by whom, democratically. It makes that just a contingent brute fact, without any normative warrant.Footnote 3 And such an utterly unprincipled approach to constituting the demos is all the more inadequate, given that there actually are strong normative reasons of at least two sorts for constituting it one way rather than some other. ‘It is as it is’ is an inadequate response, when confronted with good arguments as to how it should be instead.
One such set of normative reasons is the All Affected Principle. That principle directs us to extend the vote in a polity to everyone whose interests would or could be affected by the outcomes of that polity’s elections.Footnote 4 As I have said, however, the All Affected Principle would extend the franchise far beyond its conventional bounds. By that standard, for example, all Iraqis should be entitled to vote in the US presidential election whenever any of the candidates is proposing to invade their country.
Therein lies much of its appeal for cosmopolitans. But, as I have said, that implication gives others pause. Dahl (Reference Dahl1970, 67), who is otherwise drawn toward the All Affected Principle, confesses to being ‘troubled by the thought that [its expansionary tendency] … unlock[s] Pandora’s Box’. Fraser (Reference Fraser2009, 64–65) treats the fact that ‘everyone is affected by everything’ as a reductio ad absurdum of the All Affected Principle. That is what leads her, and various others, to reject the All Affected Principle in favor of the All Subjected Principle (a phrase she coined for a much older thought). According to that All Subjected Principle, everyone who will be subject to the laws enacted should be entitled to a vote on them.Footnote 5
Proponents of the All Subjected Principle hope that, by extending the franchise to all but only those who will be subject to the laws of that jurisdiction, they can justify keeping the franchise broadly within its conventional bounds.Footnote 6 Here I shall show, however, that those hopes are largely in vain, given policies and practices that are deeply entrenched among many important states across the world concerning whom they claim to subject to their laws.
Sometimes those policies and practices may seem to have good reasons behind them, sometimes they may not. I shall here pass no judgment on whether those policies and practices are themselves defensible, all things considered, from a normative point of view. I merely take the fact of their existence as given – just as I have done the fact of an interdependent world, in relation to the All Affected Principle. My concern here is with what normative conclusions follow from those facts, as regards who ought to be entitled to vote under the All Subjected Principle.
My argument will be that, given the fact of those policies and practices, the All Subjected Principle would require that the franchise be vastly expanded – if not to necessarily to exactly the same people as the All Affected Principle, anyway far beyond its conventional bounds. Obviously, I do not myself regard that as a criticism. Clearly, however, anti-cosmopolitans hoping to rely on the All Subjected Principle to keep the franchise within broadly conventional bounds will be sorely disappointed.
Before proceeding to a closer examination of the All Subjected Principle’s implications, in light of prevailing policies and practices among states in the contemporary world, three things should be noted about the relationship between the All Affected Principle and the All Subjected Principle.
First, note that being subjected to a law is one way of being affected by it. Hence, the All Affected Principle would enfranchise everyone whom the All Subjected Principle would. The All Affected Principle may enfranchise more people than the All Subjected Principle would. Its opponents think (wrongly, I shall show) that it would, and they object to it on those grounds. But at least the All Affected Principle enfranchises everyone that the All Subjected Principle would do. It does not leave anyone out that the All Subjected Principle would include.
Second, note that the strongest positive argument for the All Subjected Principle is couched in terms of protecting people’s autonomy (Abizadeh Reference Abizadeh2008, 38–42). Specifically, the autonomy argument here in view says that we should not subject people to laws over which they have not had a say. But that argument provides grounds for only half of the All Subjected Principle – the half that says ‘enfranchise all subjected’. It provides no grounds for the other half of the principle – the one that adds ‘all and only those subjected’. (And, as I have just pointed out, it is only in that respect that the two principles come apart in their practical implications for whom to include in the franchise.)
Third, note that the All Subjected Principle’s principle of exclusion (the ‘and only’) derives more from a concern with a failure of reciprocity than out of any concern for autonomy.Footnote 7 The All Subjected Principle objects to extending the franchise to people who are not subject to the laws in question, on the grounds that amounts to giving some people capacity to subject you, while you have none to subject them. But notice that (as the All Affected Principle points out) those other people are affected by – even if not literally subject to – the laws that you make. Failing to give them capacity to affect you through the laws that they make, in turn, would therefore be a failure of reciprocity, as well. In extending the franchise to those who are affected but not subjected, the All Affected Principle is thus respecting requirements of reciprocity, too. It is just reciprocity denominated in the broader terms of ‘affectedness’ rather than the narrower terms of ‘subjectedness’.
Specifying ‘All Subjected’
There are three ways of cashing out who is ‘subject’ to the laws of a state. One – corresponding to the first Oxford English Dictionary definition – is a more purely formal, juridical reading.Footnote 8 On that account, someone is subject to a body of laws if and only if that body of laws purports to bind him.Footnote 9 Would he be legally liable to prosecution in that state for violation of those laws?Footnote 10 Second is a more pragmatic reading, corresponding to the second Oxford English Dictionary definition of the verb ‘to subject’.Footnote 11 On that account, someone is subjected to a body of laws if and only if that body of laws materially affects him in any way.Footnote 12 The third reading is a variation on the second, which picks out a particular subset of cases. On that account, someone is subjected to a body of laws if and only if that body of laws affects him in a way that counts as ‘coercive’ (Abizadeh Reference Abizadeh2008; Reference Abizadeh2012; Miller Reference Miller2009; Reference Miller2010).Footnote 13
The second reading is unsatisfactory, because on that reading the All Subjected Principle basically collapses into the All Affected Principle to which it was supposed to be providing an alternative. The All Subjected Principle thus construed would be liable to all the same ‘over-inclusiveness’ concerns that its advocates have with the All Affected Principle (giving all Iraqis a vote in the US presidential election, and so on).Footnote 14
It would also be under-inclusive, from the point of view of a plain reading of the law. Someone living in Nevada is surely legally subject to the gun registration laws of that state, even if she has no gun to register. The law may in that case have no material consequences for her, but the law still applies to her. Every resident of Nevada (of which she is one) is legally obliged to register a gun if they have one.Footnote 15 That she needs to do nothing to satisfy the demands of the law does not mean it is not binding on her.
To switch examples: it would be patently absurd to suppose that the law against murder comes to apply to a person only at the moment she actually commits murder. She was subject to the law against murder every bit as much before she committed the murder as afterwards. In determining to what laws one is subject, the issue is not the laws under which one actually is prosecuted, but rather under what laws one legally could be prosecuted. Of course, in any well-functioning society only a very small proportion of the population is ever actually prosecuted for any breach of law. It would be clearly mistaken, however, to suppose that those are the only people who are actually subject to the laws of that state.
Consider now the third reading of what it is to be ‘subjected’ to a law. Whether that third reading fares any better depends on how we understand ‘coercive’. On the most natural reading, Iraqis were certainly subject to the coercive power of the United States when the United States invaded Iraq. Furthermore, that invasion was conducted under the color of US law.Footnote 16 So in that sense, Iraqis surely were subject to the coercive power of the United States and its laws. And if the All Subjected Principle is understood as ‘subject to coercive power’, then all Iraqis should be thereby entitled to a vote in US elections.Footnote 17 On that reading of ‘coercive’, the All Subjected Principle would have the same expansionary implications that its advocates were hoping to avoid.
There is, however, another reading – preferred by some advocates of the All Subjected Principle – that focuses on ‘coercive authority’ rather than ‘coercive power’.Footnote 18 While Iraqis certainly were subject to the coercive power of the United States and its laws when the United States invaded Iraq, they were not subject to the coercive authority of US law. US laws ‘imposed no legal obligations’ on them. The invasion was an exercise of force, pure, and simple.
But if that is what ‘being subject to the law’ means – ‘having obligations imposed on you by the law’ – then the third (‘coercion as coercive authority’) reading of ‘subjected’ collapses back into the first. It would then be the juridical fact of to whom the law applies, rather thanFootnote 19 its coercive effects, that makes someone subject to a state’s law.
Thus, the more formal, juridical reading of ‘subjected’ seems to offer the best rendering of the All Subjected Principle. Certainly it does, anyway, if the All Subjected Principle is going to provide a genuine alternative to the expansiveness of the All Affected Principle. That is therefore the version of the principle upon which I shall concentrate in the rest of this article.
For the same reason, I shall suppose that the All Subjected Principle should be read, narrowly, as enfranchising only all those who are actually subjected to the laws. A case could be made for thinking that the All Subjected Principle should be understood as arguing for the enfranchisement everyone who might potentially be subjected to the laws.Footnote 20 That reading of the All Subjected Principle would automatically have highly expansionary implications for the franchise – anyone who might potentially move to Nevada would be potentially subject to the gun laws of Nevada and should therefore have a say in making those laws, wherever they currently reside. For purposes of this article, however, I shall not avail myself of that cheap victory. Instead I shall assume, more charitably, that advocates of the All Subjected Principle can find some way to vindicate the narrower (‘actually subjected’) rather than more expansionary (‘potentially subjected’) way of interpreting their preferred principle.
Over whose conduct do states claim jurisdiction?
On the All Subjected Principle juridically understood, the question of who is subject to a state’s laws – and hence who should be entitled to a say in making them – reduces to the simple question of to whom ‘a demos decides to apply its laws’ (Miller Reference Miller2009, 222).Footnote 21
In contemporary political practice, every state applies its laws to people on its own territory.Footnote 22 Most states apply at least some of their laws to their own citizens wherever they are in the world. But states do not always (or even typically) stop at that. Their jurisdictional claims often extend beyond those first two, in various ways that render non-resident non-nationals subject to their laws – and hence (on the All Subjected Principle, juridically understood) entitled to a vote in making those laws.Footnote 23
A US Congressional Research Service commentator remarks that, while ‘a surprising number of federal criminal statutes have extraterritorial applications’, in practice ‘prosecutions have been few …’.Footnote 24 That is true. But remember, what is crucial on that juridical reading of the All Subjected Principle is purely to whom the state claims its laws apply. The issue is not who is actually hauled into that country’s courts.Footnote 25 Rather, it is who could be, given the jurisdictional claims made by that state.Footnote 26
In practice, of course, a country claiming extraterritorial jurisdiction for some particular criminal offence will often defer to the jurisdictional claims of the country on whose territory the offence was committed.Footnote 27 Pragmatically, even if a state claims extraterritorial jurisdiction, it may find it difficult or impossible to extradite or otherwise seize the offender in order to try him in its own courts.Footnote 28 In consequence, the putative offender might not, in practice, be much affected by the laws of some state not his own claiming extraterritorial jurisdiction over his conduct.Footnote 29
As a juridical fact of the matter, however, he is still subject to them. And as the previous section has shown, the juridical reading of the All Subjected Principle is the most credible one. Certainly, anyway, it is only one that holds any hope (albeit this article will argue, a forlorn hope) of making the All Subjected Principle substantially less expansive than the All Affected Principle, in terms of its implications for the franchise.
Protecting nationals abroad
Here is one classic way in which non-resident non-nationals might be subjected to the laws of some state not their own. Nozick (Reference Nozick1974, pt I) taught us to think of the state as a ‘protection agency’. One thing a state would naturally do in that capacity is to claim the right to protect its nationals and to punish anyone who harms them anywhere in the world. The classic way a state protects its citizens is by enacting and enforcing laws against harming them; and if it is to protect its citizens when they are abroad in that way, the state’s laws must apply to the harmful conduct of others (whatever their nationality) outside its own territory.Footnote 30
Claiming jurisdiction on that basis is referred to by international lawyers as the ‘passive personality’ principle (Dickinson Reference Dickinson1935; Chehtman Reference Chehtman2010, 67–70; Kamminga Reference Kamminga2012). Not all states claim jurisdiction under that heading, and many other states refuse to recognize such claims when made.Footnote 31 Nonetheless, a great many states of the world have claimed jurisdiction under that heading. Foremost among current exemplars is France.Footnote 32 But at one time or another the list has included some two dozen states,Footnote 33 conspicuously among them Japan,Footnote 34 Turkey,Footnote 35 Mexico,Footnote 36 Peru,Footnote 37 and Uruguay.Footnote 38
Of course, multiple states might claim jurisdiction over the same conduct, one based on the ‘territoriality principle’ (‘it was done on our territory’) and others based on the ‘passive personality principle’ (‘it was done to one of our nationals’). In such cases, international law requires them to engage in a good faith balancing to determine which state has a greater interest in regulating the conduct (American Law Institute (ALI) 1986, §403). In any case, if only for purely practical reasons, even states claiming a right to prosecute non-nationals for harm to their own nationals abroad will typically try to work with and through the local authorities in doing so.
Nonetheless, in extremis states do assert the right to act unilaterally, even on some other state’s territory, to protect their nationals against harm.Footnote 39 Think, for example, of the 1976 Israeli raid to free Israelis being held hostage by Popular Front for the Liberation of Palestine operatives in the Entebbe airport. States also often claim jurisdiction to prosecute and to punish non-nationals in other jurisdictions harming their own nationals. Think, for example, of Israel’s kidnapping of Adolf Eichmann in Argentina and smuggling him to Jerusalem to stand trial for crimes committed against Jews in what was at the time German territory.Footnote 40
For present purposes, it is the latter claim – the claim to subject non-nationals abroad to their law, rather than to the force of their arms – that is of interest. Such a jurisdictional claim makes anyone who threatens harm to the citizens of a state subject to the laws (at least that law) of that state, wherever they are in the world and whatever their own nationality. Furthermore, non-nationals are subject to those laws not only when they are actively harming or threatening harm that country’s nationals. Recall the Nevada gun law example once again: a law can apply to you with respect of something (there, owning a gun) that you have not yet done and indeed may have no intention of ever doing.
The upshot is that anyone who could ever intentionally harm or threaten to harm the nationals of a state such as France that claims jurisdiction under that ‘passive personality principle’ is, here and now, strictly speaking subject to the laws of that state. Logically speaking, that includes everyone in the world who might come into contact with a French national – which is pretty much everyone in the world. So everyone worldwide is subject to the laws of France – and thus should (on the All Subjected Principle, juridically understood) be entitled to a vote in France. And the same is true of every other state in the world that claims the right to protect its citizens overseas against harms criminally inflicted on them by anyone anywhere in the world.
Protecting national security
Not every state claims the right to protect its nationals against criminal harms abroad. But virtually all states claim the right to legislate to protect their own national security from harms emanating from abroad, whether from activities of their own nationals or of foreigners. International lawyers call this the ‘protective principle’ of jurisdiction.Footnote 41 Classically included among the state interests protected in this way against harmful extraterritorial conduct are ‘selling state secrets, spying or the counterfeiting of its currency or official seal’ (Stigall Reference Stigall2012, 334).
This sort of jurisdictional claim has acquired great prominence, of late, in connection with the so-called ‘war on terror’. Beginning in the mid-1990s and expanded by the USA PATRIOT Act in the wake of 9/11, US law, for example, makes it a crime for anyone to provide ‘material support’ to terrorists (Doyle Reference Doyle2010). Congress explicitly added, ‘there is extraterritorial Federal jurisdiction over an offense under this [legislation]’.Footnote 42 Any person or entity, foreign or domestic, can be prosecuted under this statute for providing material support anywhere in the world to any organization that appears on the US government’s list of ‘terrorist organizations’.
The scope of this law is wide. It extends to ‘property, tangible or intangible …, lodging, training, expert advice …, communications equipment, facilities, …, personnel …, and transportation …’.Footnote 43 To see just how wide the reach of this law is, consider the case in which the US Supreme Court upheld this statute. That involved an organization called the Humanitarian Law Project ‘train[ing] members of [a listed terrorist organization] on how to use humanitarian and international law to peacefully resolve disputes’.Footnote 44
An amicus brief filed on behalf of several conflict resolution organizations, including the Brussels-based International Crisis Group, pointed out that impartial mediators providing expert advice on how to end a conflict would be violating that statute, were one of the conflicting parties on (or subsequently added to) the US government’s list of terrorist organizations (Goodman Reference Goodman2010). Likewise with organizations like Paris-based Médecins sans Frontiéres/Doctors Without Borders providing medical assistance in conflict zones: international humanitarian law requires them to be neutral in the conflict, so they treat impartially casualties of the conflict, some of whom often are members of listed terrorist organizations; and while the medicines they supply are explicitly exempt, transportation (e.g. in their ambulances) and lodging (e.g. in their hospitals) are definitely included in the material support that the US statute prohibits (Goodman Reference Goodman2010, 25–28; Lepora and Goodin Reference Lepora and Goodin2013, 119–21).
The threat of prosecution under this statute has had a considerable chilling effect on humanitarian organizations assisting populations in need. During the famine in al-Shabaab controlled areas of Somalia in 2011, the US State Department held a press conference announcing that no aid organization would be prosecuted for good faith famine relief efforts, even if under the strict letter of the law it might be construed as ‘providing material assistance to terrorists’.Footnote 45 But that was a one-off guarantee applying to that specific crisis alone (Adelsberg, Pitts and Shebaya Reference Adelsberg, Pitts and Shebaya2013).
Those examples involve organizations, foreign as well as domestic, that might be in contravention of extraterritorial provisions of US law and be sanctioned accordingly (primarily, in practice, by having their assets in the US frozen (Bush Reference Bush2001)). But consider next the wide range of foreign individuals who might be subject to similar provisions of US law. Another provision in the same section of the US Code stipulates: ‘Whoever harbors or conceals any person who he knows, or has reasonable grounds to believe, has committed, or is about to commit, an offense under [related antiterrorism sections of the US Code] … shall be fined under this title or imprisoned not more than ten years, or both’.Footnote 46
So when Osama bin Laden’s driver Salim Ahmed Hamdan went home to Yemen for a family wedding, his family became liable under this clause for prosecution under US law by virtue of the hospitality (food and shelter) they provided to him while he was there (Lepora and Goodin Reference Lepora and Goodin2013, 119–21). So too would anyone who serves a meal or rents a room or a car to anyone who US courts judge they had ‘reasonable grounds to believe has committed or is about to commit a [terrorist] offense’. There are some places in the world where people often inevitably and unavoidably interact, to mutual advantage, with many other people who meet that description. All those people going about their ordinary affairs in those places would therefore be subject to US laws prohibiting anyone anywhere from providing ‘material assistance’ to terrorists.
On the All Subjected Principle, juridically understood, everyone who is subject to US laws in that way ought to have a vote in the making of those laws. The implication would be that we should, under that principle, enfranchise in US elections everyone in the world who lives in anywhere that terrorists are rife and interacting with them to mutual advantage is unavoidable. Everyone in Waziristan, for example, should under that principle get a vote for those who make (or could repeal) that US law.Footnote 47 I doubt that that is an outcome that would be greeted with glee by those who had turned to the All Subjected Principle as a way of avoiding the expansionary implications of the All Affected Principle.
Preventing crimes of universal concern
There are also certain crimes that are regarded under international law as ‘crimes of universal concern’. Any state has jurisdiction to prosecute those crimes, if the offender is found on its territory.Footnote 48 International lawyers call this the ‘universality principle’ of jurisdiction.
Under that heading, ‘A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern …’ (ALI 1986, §404). Until relatively recently, the only offense generally recognized under that heading was piracy.Footnote 49 Latterly, however, the list has been expanded to include ‘slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism …’ (ALI 1986, §404).Footnote 50
Not only do states have a right under international law to ‘prescribe punishment’ for such crimes against such crimes against humanity. They also have a right (a right that a great many states act upon) to ‘define’ those offences, that is, incorporate those offences in their domestic law and give those domestic enactments extraterritorial application. When a state does so, everyone everywhere in the world becomes juridically subject to that state’s legislation.
On the All Subjected Principle, juridically understood (as I have argued it must be understood), everyone subject to a state’s law should have a vote in the making of that law. By that standard, the fact that everyone in the world is subject to any state’s law against hijacking aircraft, for example, means that everyone in the world should have a vote in every state making such a law. Everyone everywhere in the world is strictly subject to those laws, even if they have no intention of actually boarding, much less hijacking, an airplane – and remember, it is the juridicial fact of being subject to the law, and that alone, that triggers the right to a vote under the All Subjected Principle, juridically understood.
Preventing certain specific offences
Finally, there is a raft of particular crimes for which states claim extraterritorial jurisdiction because those offences are ‘such that to limit their [prosecution] to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute’.Footnote 51 Among the offences for which extraterritorial jurisdiction is claimed on that basis are cybercrime, anti-trust activities,Footnote 52 other financial conspiracies, bribery, and drug trafficking (Zerk Reference Zerk2010).
An effort is typically made to establish some sort of connection to the state claiming jurisdictional authority to outlaw the activity.Footnote 53 There clearly is such a connection if one of the state’s citizens committed the crime, or if the state or one of its citizens was (or would have been) the victim of it. The Bowman case, from which the above quotation is drawn, involved a conspiracy to defraud the US government; and that fact was deemed sufficient to make the conduct properly subject US legislation, even though the overt act consummating the crime in that case was a telegram sent from a vessel on the high seas.Footnote 54 ‘A state has jurisdiction … with respect to … conduct outside its territory that has or is intended to have substantial effect within its territory’ (ALI 1986, §402(1)(b), emphasis added). And on that basis, would-be drug traffickers intending to sell their wares in the United States have been apprehended even before they reached the United States and prosecuted there.Footnote 55
Any connection between the offender and the state claiming jurisdiction to outlaw his conduct can sometimes be pretty tenuous, however. The Oxley–Sarbanes Act’s requirements, for example, apply to any private foreign issuer of securities traded on US markets.Footnote 56 Other US statutes claim jurisdiction over non-nationals acting abroad on grounds that their actions ‘affect interstate or foreign commerce’ of the US.Footnote 57 (That is an awfully wide catchment.) Yet, other US statutes, such as those against destruction of aircraft or violence at international airports, apply to a person – whether or not a US national, and whether or not the offence occurred on US territory – merely if ‘the offender is afterwards found in the United States’.Footnote 58
Everyone everywhere in the world is subject to those laws. And they are subject to them, in the juridical sense that matters, whether or not they actually violate them. It is enough that those laws apply to them – that they could be prosecuted under those laws, were they to violate them (recall again the Nevada gun registration case). And on the All Subjected Principle, juridically understood, anyone subject to a law in that way should have a say in the making of that law.
So, for example, anyone anywhere in the world who might destroy an airplane or defraud the US Government or do something affecting US interstate or foreign commerce should have a vote in the making of US laws constituting those offences. Since the test is a counterfactual one (‘are they subject to prosecution under that US law if they engage in the conduct criminalized by it?’), just about everyone in the world falls into that category. It is perfectly possible for just about anyone in the world to commit one of those acts.
Two failed evasions
Next let us consider two ways in which advocates of a narrowly restricted franchise might strive to avoid these expansive implications of the All Subjected Principle, deriving from currently common (and in many, if not all cases, eminently defensible) state practices. One points to the possibility of using treaties to incorporate foreign jurisdictions’ laws within your own. A second reinterprets the All Subjected Principle to demand enfranchisement only of those who are subject to some sufficiently large proportion of a state’s laws. Neither evasion fully works, as I shall now show.
Treaties might incorporate other states’ laws
One way of avoiding extraterritorial application of their laws is for states to sign treaties (or agree on a one-off basis) to permit the laws of one state to be applied on the territory of another (Chehtman Reference Chehtman2010, 75). For policies whose effective implementation requires transnational cooperation, states often do precisely that. Insofar they do, it is ultimately one’s own state’s decisions (in acceding to the treaty or agreeing to the foreign prosecution) to which a person is being subjected when being prosecuted by a foreign state.Footnote 59
While states enter into such treaties or agreements wherever they can, it is not always possible. Some states – typically, those home to the behaviors we would most like to control in this way – are unwilling to enter into such agreements or unable to enforce them effectively within their territories. And even if the other state enters into such an agreement, it doing so resolves the democratic legitimacy problem here in view only if that state is itself a democratic regime – which, once again, the sorts of states of most concern in this regard often are not.
Where securing treaties or one-off agreements with other states is not possible, states with interests of the sorts just canvassed will often (and often not unreasonably) respond by writing extraterritorial provisions into their own domestic law. In so doing, they make unilateral claims that their laws on these matters apply to everyone everywhere in the world.
Not subject to too many
When asking whether under the All Subjected Principle outsiders should be entitled to a say in making the laws on the same basis as insiders, Miller readily concedes that ‘[t]hey would be, of course, if a demos decides to apply its laws, or a significant proportion of them, to outsiders’ (Miller Reference Miller2009, 222, emphasis added).Footnote 60 Might that ‘significant proportion’ rider provide an easy avenue of escape from the conclusions outlined above? Can states excuse themselves from giving a vote to non-resident non-nationals whom they subject to some of their laws, merely on grounds that they do not subject them to all that many of their laws?Footnote 61
Now, as I have been phrasing it throughout, the All Subjected Principle should properly be understood as requiring that anyone who is juridically subject to a law should be given a say in making that law. If only a few of any given state’s laws apply to non-resident non-nationals, then those people should only have a say over a few of that state’s laws. But on the All Subjected Principle, they should surely have a say in the making of such laws – be they many or few – to which they would be subject.
Were enfranchisement an all-or-nothing affair – such that a person either has to have a vote in the making of every law of a state or in the making of none of them – matters might be otherwise. Then the fact that a person ought to be entitled to a vote on only a few of a state’s laws might constitute an argument (in that all-or-nothing setting) for depriving him of a vote on any of them.Footnote 62 But there is no reason to think that enfranchisement needs to be an all-or-nothing matter. It is perfectly possible (even if undeniably more cumbersome) for some people to be given a right to vote on some things but not others.Footnote 63
It would not be insurmountably difficult to establish twin electorates, one for making laws that apply extraterritorially and other for making laws that do not. In a direct democracy, for example, you could simply maintain two separate electoral registers. One register would contain the names of all nationals (and resident aliens, the All Subjected Principle would insist). The other register would contain the names of everyone else in the world. People on both registers would be entitled to vote on any referendum to enact legislation to which everyone everywhere would be subject. People on the former register, and they alone, would be entitled to vote on any referendum to enact legislation to which only nationals and resident aliens would be subject.Footnote 64
Something similar could be done within a system of representative democracy. There, the idea would be for some representatives to be chosen by nationals and resident aliens, and some other representatives to be chosen by everyone else in the world. The first set of representatives, and they alone, get to vote on those laws to which only nationals and resident aliens would be subject. But both sets of representatives would get to vote on those laws to which everyone everywhere in the world would be subject.
Conclusion
As has been shown, a great many states extend some of their most significant laws to cover non-nationals on foreign soil. On the All Subjected Principle, understood in the juridical way in which I have argued that it must be understood, those states must give a vote in the making of such laws to all foreigners abroad who would be subject to them.
Anti-cosmopolitans will be aghast. They had been hoping that the All Subjected Principle would imply a significantly less extensive franchise than the cosmopolitans’ All Affected Principle. How might they respond? I see only four options:
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1. Abandon hopes of a more restrictive franchise, and give a vote in all the state’s elections to all non-resident non-nationals who are juridically subject to any laws of that state.
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2. Abandon the practice of applying the state’s laws to non-resident non-nationals.
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3. Adopt a two-track method of making laws as sketched above, giving non-resident non-nationals a vote on laws to which they would be subject but not on those to which they would not be subject.
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4. Reject the All Subjected Principle as the proper guide for constituting the demos.
For anti-cosmopolitans who embraced the All Subjected Principle precisely to avoid the expansive implications of the All Affected Principle, the first is not an attractive option. Neither, however, is the second. No state, presumably, would be happy renouncing its right to prevent terrorist attacks originating abroad; and no state, presumably, would be any the happier renouncing its right to use its own criminal code to prevent such attacks, in whatever ways it can. Nor would many states be happy renouncing their powers to use their own criminal code to curb financial misconduct in the globalized economy, originating abroad but impacting at home.
Among the first three options, the third is presumably the least unappealing. Cumbersome although it would undeniably be to maintain and employ different electoral arrangements for making different sorts of laws, that is the least (and also the most) that the All Subjected Principle would require.Footnote 65
Many would of course be loathe to give people who would commit terrorist acts a vote over their own laws on terrorism. Such people presumably find it all the more galling to be told that we should do so precisely because those people might find themselves in breach of those laws, committing terrorist acts. That, however, is exactly what the All Subjected Principle would require – and exactly why it would require it.Footnote 66 That is what it means to give people who will be subject to a state’s laws a say in the making of those laws.
Someone who cannot abide that implication might be tempted by the fourth option, rejecting the All Subjected Principle tout court. But anyone who rejects both the All Subjected and All Affected Principles is left without any principled way of constituting the demos. That would create a void at the heart of democratic theory that would compromise every state’s democratic credentials.Footnote 67 Concluding that ‘there are simply no principles for judging whether anyone is unjustly excluded from citizenship’ leads to ‘absurdities’ against which Dahl (Reference Dahl1989, 122) rightly rails. That would indeed be an awfully big bullet for anti-cosmopolitans to bite.
Acknowledgments
This article benefited from discussions at the Fondation Brocher in Geneva, the Institute for Futures Studies in Stockholm, Free University Berlin and the Universities of Luzern, Queensland and Stockholm. For comments then and later, the author is grateful to Hans Angé, Gustaf Arrhenius, Valentine Beck, Ludvig Beckman, Tom Christiano, Eva Erman, Jeff Howard, Danielle Ireland-Piper, Chiara Lepora, Katharina Berndt Rasmussen, Jonas Hultin Rosenberg, Richard Shapcott, Ana Tanasoca, Lea Ypi, and the editors of and referees for this journal.
