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This article addresses the meaning of the citizenship clauses of the Civil Rights Act of 1866 and the Fourteenth Amendment by augmenting the historical record relevant to those clauses. It argues that the key to understanding their meaning lies in the nineteenth century concept of allegiance, the central concept in the international law of citizenship and subjecthood in the nineteenth century. International law, diplomatic history, and international conflict centered around that concept, reveal complexities not fully explored in the previous scholarly literature on the citizenship clauses. Conflicting national claims to the allegiance of subjects and citizens and to the duties they owed to sovereigns caused, in part, the War of 1812. They almost led the U.S. to war with Austria in 1853, and they contributed to tensions with other German states. They flared up again with Great Britain in conflicts over conscription by the United States of British subjects in 1862, and in the Fenian conflicts of 1866. Conflict arose over the extent to which sovereigns whose subjects emigrated to the United States retained jurisdiction over those emigrants based on allegiance to their native sovereigns. This, to which I refer as the jurisdiction arising from allegiance, differed from and to some extent clashed with territorial jurisdiction. It was recognized as a matter of international law as an extraterritorial jurisdiction grounded in the relationship between the subject and the subject's original sovereign. It was vastly more extensive and expansive than its enervated twenty-first century descendant, and so, in a seeming paradox, has remained generally invisible to the modern eye. To understand it is to gain important insights into the meanings underlying both the Act and the Amendment. The citizenship clauses of the Act and the Amendment offered opportunities to relieve this international tension, even while addressing their principal purpose of making citizens of the freedmen. The congressional debates over the Act and Amendment lapsed into incoherence because one group of legislators discussed the proposed Amendment as if the word 'jurisdiction' therein meant the jurisdiction arising from allegiance. That suggests that they intended to exclude from birthright citizenship the children of aliens, of persons who owed allegiance to some other sovereign at the time of the child's birth in the United States. Their opponents discussed the proposed Amendment as if the word 'jurisdiction' meant only territorial jurisdiction. That meant that anyone born within the United States would be a citizen by birthright, with only the most trivial exceptions, unless excluded explicitly. The greater weight of language and history favors the conclusion that the word "jurisdiction" in the Fourteenth Amendment was predominantly understood to mean the jurisdiction arising from allegiance. The weight of the evidence is not overwhelming, however, and the disposition of enormously important modern issues on the basis of that weight, without further research, might well be ill-advised.

The General Assembly of the United Nations, at its 179th plenary meeting on December 9, 1948, unanimously approved the Convention on the Prevention and Punishment of the Crime of Genocide, and proposed it for signature and ratification or accession in accordance with Article XI thereof. Article I of the Convention provides that "genocide, whether committed in time of peace or in time of war, is a crime under international law." Article V stipulates that the Contracting Parties undertake to enact, in accordance with their respective constitutions, the necessary legislation to provide effective penalties for persons guilty of genocide or any of the other acts made punishable under the Convention. Such persons are to be tried, according to Article VI, "by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction." The Convention thus envisages the possible creation of an international penal tribunal.

559Jurisdiction — Personal — Crimes committed by nationals abroad — Theft — Whether courts of State of defendant's nationality have jurisdiction — Condition of double criminality — Law of country of commission of offence only allowing punishment by private prosecution — Time limit for instituting proceedings in country of commission of offence having expired — Whether requirement of double criminality fulfilled — The law of Austria

419Human rights — Crimes against humanity — Scope of concept of crimes against humanity — Widespread and systematic violations of human rights — Fair trial — Requirement that International Criminal Tribunal operate in accordance with requirements of law of human rightsInternational criminal law — War crimes — Grave breaches of the Geneva Conventions — Crimes against humanity — Whether international law requires nexus between crimes against humanity and armed conflict — Nuremberg precedent — Concept of individual criminal responsibility in international law — Statute of the International Criminal Tribunal for the Former Yugoslavia — Challenge to jurisdiction of Tribunal — Legality of establishment of Tribunal by Security Council — Whether Tribunal "established by law" — International Covenant on Civil and Political Rights, 1966, Article 14 — Primacy of Tribunal over national courtsInternational organizations — United Nations — Security Council — Powers under Chapter VII of United Nations Charter — Determination of threat to international peace and security — Whether subject to legal limitations — Whether judicially reviewable — Situation in the former Yugoslavia — Whether a threat to international peace and security — Article 41 of United Nations Charter — Whether power to take measures not involving the use of military force extends to creation of a tribunal with criminal jurisdiction — Status of International Tribunal as subsidiary organ of Security CouncilInternational tribunals — International Criminal Tribunal for the Former Yugoslavia — Jurisdiction — Whether Tribunal empowered to hear challenge to the legality of its establishment as part of challenge to jurisdiction — Appeals from interlocutory decisions of trial chamber — Power of Appeals Chamber to order remand of case — Primacy of International Tribunal over national courts — Concept of fair trial — ProcedureRelationship between international law and municipal law — Criminal trials — International Criminal Tribunal for the Former Yugoslavia — Primacy over national courts420Sources of international law — Custom — Formation of customary international law — Requirements for formation of custom — State practice — Opinio juris — Development of customary international law applicable to internal armed conflictsWar and armed conflict — Armed conflict — Definition — Characterization of conflict as internal or international — Geographical and temporal scope of armed conflict — Whether law of armed conflict applicable to treatment of detainees in part of country where no actual fighting taking placeWar and armed conflict — Internal armed conflicts — Law applicable to internal armed conflicts — Whether grave breaches provisions of Geneva Conventions applicable to internal armed conflicts — Customary international law applicable to internal armed conflicts — Law on weaponry and targetingWar and armed conflict — War crimes — Grave breaches of the Geneva Conventions — Scope of application — Whether applicable to internal conflicts — Relationship between war crimes and grave breaches — Crimes against humanity

The need for an international criminal jurisdiction was recognized by the General Assembly of the United tjations in a resolution adopted in 1948, in which it was stated in the preamble thalt "in the course of development of the international community, there will be an increasing need of an international judicial organ for the trial of certain crimes under international law."

"Domestic Application of International Human Rights Norms and Universal Jurisdiction" published on by Oxford University Press.