Buxbaum & Fleury Graff: Extraterritoriality / L’extraterritorialité

Hannah L. Buxbaum (Indiana Univ., Bloomington - Law) & Thibaut Fleury Graff (Université Paris-Saclay - Law) have published Extraterritoriality / L’extraterritorialité (Brill | Nijhoff 2022). The table of contents is here. Here's the abstract:

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Extraterritoriality is a challenging concept as a matter of international law and policy, raising fundamental questions about the allocation of power among States. It is also a dynamic concept, reflecting and responding to shifts in the global economy, patterns of human behavior, and understandings of state sovereignty.

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This volume explores extraterritoriality from a wide range of perspectives—theoretical, historical, and empirical. Its chapters likewise address a wide range of practices, in areas including criminal law, economic regulation, and the protection of human rights. Throughout, the volume recognizes extraterritoriality as an expansive concept used to assess both the actions and the obligations of states within the international arena.

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L’extraterritorialité est un concept qui, touchant à la répartition des pouvoirs entre Etats, soulève des questions juridiques et politiques fondamentales dans la société internationale. Son usage grandissant témoigne de son dynamisme, qui reflète la globalisation de l’économie, les évolutions des comportements individuels et les réinterprétations de la souveraineté étatique.

Cet ouvrage propose sur l’extraterritorialité une diversité de vues – théoriques, historiques et empiriques – et en étudie les diverses pratiques – du droit pénal à la régulation économique, en passant par la protection des droits de l’homme. L’extraterritorialité se révèle, ce faisant, un concept englobant pour mesurer tant le déploiement de l’action étatique que l’étendue des obligations de l’Etat sur la scène internationale.

Islam: The Gambia v. Myanmar: An Analysis of the ICJ’s Decision on Jurisdiction under the Genocide Convention.

Md. Rizwanul Islam (North South Univ. - Law) has posted an ASIL Insight on The Gambia v. Myanmar: An Analysis of the ICJ’s Decision on Jurisdiction under the Genocide Convention.

Buxbaum: The Practice(s) of Extraterritoriality

Hannah L. Buxbaum (Indiana Univ., Bloomington - Law) has posted The Practice(s) of Extraterritoriality (in Extraterritoriality / L'extraterritorialite, Hannah L. Buxbaum & Thibaut Fleury Graff eds., forthcoming). Here's the abstract:

Extraterritoriality has a bad reputation. The term has acquired inescapably negative connotations as a result of its alignment with one particular practice: a state’s regulation of foreign activity without the consent—or, worse, over the objections—of the state in which the activity occurred. Yet while that practice has become common, particularly in the area of economic law, it is by no means the only form of extraterritorial governance. Exercises of legal authority that affect persons, activity, or interests outside the lawmaker’s territory take many forms and serve many purposes—and in many cases are unobjectionable as a matter of international law and policy.

Equating extraterritoriality with an overreach of state authority elides the significant differences among such practices, and this work seeks to explore the full range and variety of extraterritorial regulation. The chapter draws examples from many areas of substantive law, including criminal law, economic regulation, and human rights regimes. It considers different modes of extraterritorial governance, examining both unilateral regulation and regulation undertaken within treaty frameworks. Finally, the chapter identifies circumstances in which states practice extraterritoriality not to advance local interests but to achieve collective goals or protect global goods—as well as circumstances in which extraterritoriality is not merely permitted but is a state obligation.

The chapter explores not only the descriptive but also the normative dimensions of extraterritoriality. Although doctrine in this area relies heavily on geographic facts, the point of calling an exercise of legal authority “extraterritorial” is not to say something about the physical space in which a state acts. It is to say something about the legal space in which a state acts—that is, its jurisdiction. And the relationship between physical space and legal space is highly contingent, shifting across contexts and over time as a result of changes in international law and modes of human interaction. I approach extraterritoriality as a legal construct used to mediate the ever-changing relationship between regulatory needs (both of individual states and of the international community) and prevailing theories of sovereignty.

Talmon: The South China Sea Arbitration: Jurisdiction, Admissibility, Procedure

Stefan Talmon (Univ. of Bonn - Law) has published The South China Sea Arbitration: Jurisdiction, Admissibility, Procedure (Brill | Nijhoff 2022). Here's the abstract:

This book examines the South China Sea Arbitration between the Philippines and China, widely hailed as a landmark case in the law of the sea. Stefan Talmon argues that while the Tribunal assembled international lawyers of the highest repute and unrivalled experience, the case was nevertheless decided wrongly. He examines every step of the proceedings and critically engages with both the Philippines’ submissions and the Tribunal’s rulings. He finds that the Tribunal was lacking jurisdiction to decide the case, that some of the Philippines’ claims were also inadmissible, and that the Tribunal’s awards were tainted with procedural errors.

Canefe: Crimes Against Humanity: The Limits of Universal Jurisdiction in the Global South

Nergis Canefe (York Univ. - Politics) has published Crimes Against Humanity: The Limits of Universal Jurisdiction in the Global South (Univ. of Wales Press 2021). Here's the abstract:

This volume considers how, based on the examination of cases pertaining to transitional justice settings that resort to local interpretations of crimes against humanity jurisprudence, fragmentation of international law and circumscribed applications of universal jurisdiction are necessary aspects of the grand enterprise to overcome the impasse of the tainted legacy of international criminal law in the Global South. If we are to proceed with adjudication of the most egregious and heinous crimes involving state criminality without facing the charge of neo-colonialist plotting, then we must reckon with localised and domesticated interpretations of international criminal law, rather than pursuing strict forms of legislative dictation of international criminal law.

Gallant: International Criminal Jurisdiction: Whose Law Must We Obey?

Kenneth S. Gallant (Univ. of Arkansas, Little Rock - Law) has published International Criminal Jurisdiction: Whose Law Must We Obey? (Oxford Univ. Press 2022). Here's the abstract:

International Criminal Jurisdiction is a treatise for anyone conducting research into how domestic and international regimes create and enforce rules for personal and subject matter jurisdiction in transnational or international criminal cases. It is the only such treatise in English on this topic. Attorneys representing corporate executives in white collar criminal cases will be able to use this book to construct challenges to a foreign court's exercise of jurisdiction over those clients. Legal scholars wishing to critique foreign domestic courts for defying suppression treaties will find in this book information on how and why those courts are doing so. Law students will turn to this book for distinctions between international criminal tribunals and domestic courts in the exercise of personal jurisdiction over government officials. The book provides complete details on how domestic legislatures and the U.N. have created statutory and treaty-based rules expanding or even limiting courts' and tribunals' jurisdiction over certain crimes and certain categories of defendants. This research serves the book's function as a thorough guide to jurisdictional questions that arise when criminal acts or criminals cross borders. Questions include whether a defendant possesses standing to challenge an international tribunal's personal jurisdiction over him, what happens when a given domestic regime neglects to criminalize conduct prohibited by a new treaty, and why some domestic courts choose not to exercise extraterritorial jurisdiction.

Webinar: Jurisdictional Immunities Again

On May 11, 2022, the Università degli Studi di Ferrara and the Università Cattolica del Sacro Cuore will hold a webinar on "Jurisdictional Immunities Again." Details are here.

Chehtman: Strategic Approaches to Extraterritorial Jurisdiction in Latin America

Alejandro Chehtman (Universidad Torcuato Di Tella - Law) has posted Strategic Approaches to Extraterritorial Jurisdiction in Latin America (in Extraterritoriality in International Law, A. Parrish & C. Ryngaert eds., forthcoming). Here's the abstract:

This chapter examines the main attitudes towards extraterritoriality in Latin America. It seeks to clarify and critically assess legal and doctrinal developments as well as political attitudes towards extraterritoriality in a distinct part of the world. It argues that it is possible to identify a general, prevailing attitude towards extraterritorial jurisdiction in Latin America. This attitude is characterized by an attempt to maximize the capacity of national authorities for autonomous action by diligently adopting certain legal reforms, including the extension of states’ laws extraterritorially over certain offences, and the conclusion of extradition treaties. However, it further shows that national authorities have largely modulated the concrete application of these provisions in line with the prevailing interests, self-perception, and political sensibilities of the Latin American (creole) elites. These elites have generally shown little appetite for prosecuting crimes extraterritorially, and in the few cases such appetite existed, geo-political considerations have contributed to undermining effective prosecutions. At the same time, domestic authorities have supported, or at least accepted, foreign extraterritorial prosecutions against local threats or groups that seek to challenge the hegemony of local elites, profiting from the US’ agenda in the region, while they have adopted a cautious, non-confrontational approach to resisting US extraterritorial prosecutions in situations Latin American elites preferred to handle in their own terms.

Eftekhar: The Role of the Domestic Law of the Host State in Determining the Jurisdiction ratione materiae of Investment Treaty Tribunals: The Partial Revival of the Localisation Theory?

Reza Eftekhar has published The Role of the Domestic Law of the Host State in Determining the Jurisdiction ratione materiae of Investment Treaty Tribunals: The Partial Revival of the Localisation Theory? (Brill | Nijhoff 2021). Here's the abstract:

The Role of the Domestic Law of the Host State in Determining the Jurisdiction ratione materiae of Investment Treaty Tribunals: The Partial Revival of the Localisation Theory? focuses on the largely unexplored role of the host state law in determining the jurisdiction ratione materiae of investment treaty tribunals. Given domestic law’s essential role in subject-matter jurisdiction issues, and in the light of the broader function of host state law and host state courts in contemporary investment treaty law, the author argues that the dormant “localisation” theory that was raised and defended by developing countries in the 1960s-1970s in the context of foreign investment contract disputes has now been partially revived in the area of the investment treaty law. This is a significant milestone in the ongoing discussions on the reform of the investment treaty dispute settlement regime.

Gallant: International Criminal Jurisdiction: Whose Law Must We Obey?

Kenneth Gallant (Univ. of Arkansas - Law) has published International Criminal Jurisdiction: Whose Law Must We Obey? (Oxford Univ. Press 2021). Here's the abstract:

International Criminal Jurisdiction is a treatise for anyone conducting research into how domestic and international regimes create and enforce rules for personal and subject matter jurisdiction in transnational or international criminal cases. It is the only such treatise in English on this topic. Attorneys representing corporate executives in white collar criminal cases will be able to use this book to construct challenges to a foreign court's exercise of jurisdiction over those clients. Legal scholars wishing to critique foreign domestic courts for defying suppression treaties will find in this book information on how and why those courts are doing so. Law students will turn to this book for distinctions between international criminal tribunals and domestic courts in the exercise of personal jurisdiction over government officials. The book provides complete details on how domestic legislatures and the U.N. have created statutory and treaty-based rules expanding or even limiting courts' and tribunals' jurisdiction over certain crimes and certain categories of defendants. This research serves the book's function as a thorough guide to jurisdictional questions that arise when criminal acts or criminals cross borders. Questions include whether a defendant possesses standing to challenge an international tribunal's personal jurisdiction over him, what happens when a given domestic regime neglects to criminalize conduct prohibited by a new treaty, and why some domestic courts choose not to exercise extraterritorial jurisdiction.

Conference: Jurisdiktion - Wer spricht internationales Recht? / Jurisdiction - Who speaks international law?

The Working Group of Young Scholars in Public International Law (Arbeitskreis junger Völkerrechtswissenschaftler*innen - AjV) and the German Society of International Law (Deutsche Gesellschaft für Internationales Recht - DGIR) will host a conference on "Jurisdiktion - Wer spricht internationales Recht? / Jurisdiction - Who speaks international law?," on September 3-4, 2021, at the University of Bonn. Program and registration are here.

Conference: Extraterritoriality in International Law

On September 15-17, 2021, a conference will be held on "Extraterritoriality in International Law." Program and registration are here.

Ireland-Piper: Extraterritoriality in East Asia: Extraterritorial Criminal Jurisdiction in China, Japan, and South Korea

Danielle Ireland-Piper (Bond Univ. - Law) has published Extraterritoriality in East Asia: Extraterritorial Criminal Jurisdiction in China, Japan, and South Korea (Edward Elgar Publishing 2021). Here's the abstract:

Extraterritoriality in East Asia examines the approaches of China, Japan, and South Korea to exercising legal authority over crimes committed outside their borders. It considers examples of legislation and judicial decision-making and offers a deeper understanding of the topic from the perspective of this legally, politically, and economically significant region. Beginning with a foundational overview of the principles of jurisdiction in international law, as well as identifying current challenges to those principles, subsequent chapters analyse the ways in which extraterritorial jurisdiction operates and is regulated in China, Japan, and South Korea. Danielle Ireland-Piper contextualizes contemporary issues within a historical narrative of each country and concludes by exploring areas of convergence and divergence between them.

Forlati & Franzina: Universal Civil Jurisdiction: Which Way Forward?

Serena Forlati (Univ. of Ferrara - Law) & Pietro Franzina (Catholic Univ. of the Sacred Heart - Law) have published Universal Civil Jurisdiction: Which Way Forward? (Brill | Nijhoff 2021). The table of contents is here. Here's the abstract::

Enabling the victims of international crimes to obtain reparation is crucial to fighting impunity. In Universal Civil Jurisdiction – Which Way Forward? experts of public and private international law discuss one of the key challenges that victims face, namely access to justice. Civil courts in the country where the crime was committed may be biased, or otherwise unwilling or unable to hear the case. Are the courts of other countries permitted, or required, to rule on the victim’s claim? Trends at the international and the domestic level after the Naït-Liman judgment of the European Court of Human Rights offer a nuanced answer, suggesting that civil jurisdiction is not only concerned with sovereignty, but is also a tool for the governance of global problems.

Call for Papers: Jurisdiktion - Wer spricht internationales Recht? / Jurisdiction - Who speaks international law?

The Working Group of Young Scholars in Public International Law (Arbeitskreis junger Völkerrechtswissenschaftler*innen - AjV) and the German Society of International Law (Deutsche Gesellschaft für Internationales Recht - DGIR) have issued a call for papers for a conference on "Jurisdiktion - Wer spricht internationales Recht? / Jurisdiction - Who speaks international law?," to take place September 3-4, 2021, at the University of Bonn. The call is here.

Krisch: Jurisdiction Unbound: Global Governance through Extraterritorial Business Regulation

Nico Krisch (Graduate Institute of International and Development Studies) has posted Jurisdiction Unbound: Global Governance through Extraterritorial Business Regulation. Here's the abstract:

The international law of jurisdiction is faced with far-reaching changes in the context of a globalizing world, but its general orientation, centred on territoriality as the guiding principle, has remained stable for a long time. This paper traces how, in contrast to the prevailing rhetoric of continuity, core categories of jurisdiction have been transformed in recent decades in such a way as to generate an ‘unbound’ jurisdiction, especially when it comes to the regulation of global business activities. The result is a jurisdictional assemblage – an assemblage in which a multiplicity of states have valid jurisdictional claims without clear principles governing the relationship between them, creating a situation in which, in practice, a few powerful countries wield the capacity to set and implement the rules. Jurisdiction is thus misunderstood if framed as an issue of horizontal relations among sovereign equals but should rather be regarded as a structure of global governance through which (some) states govern transboundary markets. Using a governance prism, this paper argues, can help us to gain a clearer view of the normative challenges raised by the exercise of unbound jurisdiction, and it shifts the focus to the accountability mechanisms required to protect not only the rights of targeted companies but also, and especially, the self-government of weaker countries.

Kassoti: The Extraterritorial Applicability of the EU Charter of Fundamental Rights: Some Reflections in the Aftermath of the Front Polisario Saga

Eva Kassoti (T.M.C. Asser Institute - Centre for the Law of European External Relations) has posted The Extraterritorial Applicability of the EU Charter of Fundamental Rights: Some Reflections in the Aftermath of the Front Polisario Saga (European Journal of Legal Studies, forthcoming). Here's the abstract:

The Front Polisario cases before the Court of Justice of the European Union (CJEU) brought to the forefront the question of whether the EU is bound by the Charter of Fundamental Rights when it concludes trade agreements with third states that may affect the enjoyment of fundamentalrights abroad.This isclosely linked to the broader issue of the extraterritorial application of the Charter. In light of these developments, the article purports to revisit this question with a view to ascertaining the current state of the law. It examines and rejects the argument in favour of transposing the extraterritoriality standard developed by the European Court of Human Rights. Against this backdrop, the article continues by focusing on Article 51 of the Charter, which prescribes the Charter's field of application. The main argument advanced is that territorial considerations are immaterial in the context of determining the Charter's applicability; what seems to matter in this context is whether the situation in question is covered by an European Union (EU) competence.

Ryngaert: Selfless Intervention: The Exercise of Jurisdiction in the Common Interest

Cedric Ryngaert (Utrecht Univ. - Law) has published Selfless Intervention: The Exercise of Jurisdiction in the Common Interest (Oxford Univ. Press 2020). Here's the abstract:

Should states intervene in situations outside of their own territory in order to safeguard or promote the common good? In this book, Cedric Ryngaert addresses this key question, looking at how the international law of state jurisdiction can be harnessed to serve interests common to the international community. The author inquires how the purpose of the law of jurisdiction may shift from protecting national interests to furthering international concerns, such as those relating to the global environment and human rights. Such a shift is enabled by the instability of the notion of jurisdiction, as well as the interpretative ambiguity of the related notions of sovereignty and territoriality. There is no denying that, in the real world, 'selfless intervention' by states tends to combine with more insular considerations. This book argues, however, that such considerations do not necessarily detract from the legitimacy of unilateralism, but may precisely serve to trigger the exercise of jurisdiction in the common interest.

Raible: Human Rights Unbound: A Theory of Extraterritoriality

Lea Raible (Univ. of Glasgow - Law) has published Human Rights Unbound: A Theory of Extraterritoriality (Oxford Univ. Press 2020). Here's the abstract:

This book explores to what extent a state owes human rights obligations to individuals outside of its territory, when the conduct of that state impacts upon the lives of those individuals. It draws upon legal and political philosophy to develop a theory of extraterritoriality based on the nature of human rights, merging accounts of economic, social, and cultural rights with those of civil and political rights

Lea Raible outlines four main arguments aimed at changing the way we think about the extraterritoriality of human rights. First, she argues that questions regarding extraterritoriality are really about justifying the allocation of human rights obligations to specific states. Second, the book shows that human rights as found in international human rights treaties are underpinned by the values of integrity and equality. Third, she shows that these same values justify the allocation of human rights obligations towards specific individuals to public institutions - including states - that hold political power over those individuals. And finally, the book demonstrates that title to territory is best captured by the value of stability, as opposed to integrity and equality. On this basis, Raible concludes that all standards in international human rights treaties that count as human rights require that a threshold of jurisdiction, understood as political power over individuals, is met. The book applies this theory of extraterritoriality to explain the obligations of states in a wide range of cases.

Allen, Costelloe, Fitzmaurice, Gragl, & Guntrip: The Oxford Handbook of Jurisdiction in International Law

Stephen Allen (Queen Mary, Univ. of London - Law), Daniel Costelloe (Wilmer Cutler Pickering Hale and Dorr LLP), Malgosia Fitzmaurice (Queen Mary, Univ. of London - Law), Paul Gragl (Queen Mary, Univ. of London - Law), & Edward Guntrip (Univ. of Sussex - Law) have published The Oxford Handbook of Jurisdiction in International Law (Oxford Univ. Press 2019). Contents include:

• Stephen Allen, Daniel Costelloe, Malgosia Fitzmaurice, Paul Gragl, & Edward Guntrip, Introduction: Defining State Jurisdiction and Jurisdiction in International Law
• Kaius Tuori, The Beginnings of State Jurisdiction in International Law until 1648
• Stephane Beaulac, The Lotus Case in Context - Sovereignty, Westphalia, Vattel, Positivism
• Nurfadzilah Yahaya, The European Concept of Legal Jurisdiction in the Colonies
• Stephan Wittich, Immanuel Kant and Jurisdiction in International Law
• Helen Quane, Navigating Diffuse Jurisdictions: An Intra-State Perspective
• Paul Schiff Berman, Jurisdictional Pluralism
• Mariana Valverde, Deepening the Conversation Between Sociolegal Theory and Legal Scholarship About Jurisdiction
• Shaun McVeigh, Critical Approaches to Jurisdiction and International Law
• Cedric Ryngaert, Cosmopolitan Jurisdiction and the National Interest
• Paul Gragl, Jurisdictional Immunities of the State in International Law
• Dino Kritsiotis, The Establishment, Change, and Expansion of Jurisdiction through Treaties
• Uta Kohl, Territoriality and Globalization
• Alex Mills, Private law Regulation and Private Interests in Public International Law Jurisdiction
• Kimberly Trapp, Jurisdiction and State Responsibility
• Stephen Allen, Enforcing Criminal Jurisdiction in the Clouds and International Law's Enduring Commitment to Territoriality
• Wouter Vandehole, The 'J' word: Driver or Spoiler of Change in Human Rights Law?
• Edward Guntrip, International Investment Law, Hybrid Authority and Jurisdiction Daniel Costelloe, Concepts of State Jurisdiction in the Contentious and Advisory Jurisprudence of the International Court of Justice and the Permanent Court of International Justice
• Georg Kerschischnig & Blanca Montejo The Evolving Nature of the Jurisdiction of the Security Council - a Look at Twenty-First Century Practice
• Kirsten Schmalenbach, International Criminal Jurisdiction Revisited
• James Summers, Jurisdiction and International Territorial Administration