The international community has yet to develop a broadly accepted philosophical rationale for the extraterritorial adjudication of war crimes. Instead, several justifications exist in a state of tension that produces uncertainties in the applicable legal doctrines and policies. This article explains how the competition between the “atrocities” approach on the one hand, and the statist and humanitarian rationales on the other, causes instability in the regime. It advocates for increased attention to the philosophical grounding of extraterritorial war crimes (...) trials, particularly in light of the increasing frequency of such trials before international courts as well as national courts exercising universal jurisdiction. (shrink)

This paper provides a philosophical critique of the principles that govern extraterritorial punishment under international law. It advocates an interest-based theory of punishment that accounts for states' right to punish offences committed on their territory or against their sovereignty, security or important governmental functions. Yet, it criticizes the states' well-established right to punish crimes committed extraterritorially on grounds of the nationality of the offender or that of the victim. Indeed, it shows that the arguments on the basis of which (...) these jurisdictional bases are commonly defended either beg the fundamental question they are meant to answer or are simply committed to much broader rules than those currently in force. The last section of this paper examines whether competing justifications for legal punishment based on other grounds have more promise in terms of being able to better explain how the international law currently regulates extraterritorial punishment. It suggests that even refined consequentialist and deontological theories ultimately do not fare as well as the argument advocated here in accounting for certain core intuitions regarding the practice of legal punishment. (shrink)

In international human rights law ‘jurisdiction’ is the centre of the debate on extraterritorial obligations. The purpose of the present paper is to a) analyse how facts and principles contribute t...

ABSTRACT In this paper we explore how a public national media outlet, the British BBC, represents an international legal case which has a highly political nature. The case is US versus Huawei/meng Wanzhou, which took place between 2018 and 2021. Accusations were that the Chinese technology company committed fraud, leading the global HSBC bank to breach US sanctions against Iran. The charges were made by the US using what is called an ‘extraterritorial law’, which, while rejected as law by (...) governments around the world, is policed by US economic powers and control over international finance. Using Critical Discourse Analysis we show that, while the BBC presents much detail of legal process, the actual nature of the law the US uses to bring criminal charges against international companies and banks, is neither considered nor questioned. Our interest is how such a law, which has a huge influence over global trade and politics, is presented to the public in this particular case. We contribute to the position that the nature of laws, how they are used and known, must always be understood within the prevailing discourses of the moment. (shrink)

The United Nations Guiding Principles on Business and Human Rights, resulting from the work of John Ruggie and his team, largely depend on state action and corporate good will for their implementation. One increasingly popular way for states to prevent and redress violations of human rights committed by companies outside their country of registration is to adopt measures with extraterritorial implications, some of which are presented in the article, or to assert direct extraterritorial jurisdiction in specific instances. (...) Some United Nations human rights bodies and non-governmental organisations are clearly supporting the use of extraterritoriality and have argued that international human rights law places an obligation on states to embrace extraterritoriality so as to better control the activities of companies registered on their territories. In this context, the article aims to determine whether extraterritoriality is the magic potion that will help enhance corporate accountability for human rights violations committed overseas. The article explores whether such obligation exists and, beyond this, whether extraterritoriality should be further encouraged. (shrink)

This book provides the first full account, explanation, and critique of extraterritorial punishment in international law.

In this review essay, I offer reflections on three themes. I begin by exploring Alejandro Chehtman’s expressed methodological commitments. I argue that his views move him closer to Lon Fuller and away from the thin accounts offered by HLA Hart and Joseph Raz. Moreover, to make sense of his views, he must offer a more normatively robust theory of law. Second, I turn to his use of Raz’s theory of authority. I argue that Chehtman fails to distinguish between Raz’s views (...) and his own, but more importantly, I maintain that his discussion of Raz is superfluous: in the course of “unpacking” Raz’s views, he leads us back to his own core theses. Finally, I explore Chehtman’s ability to deal with perennial worries that plague any attempt to offer a justification for International Criminal Law in general, and the International Criminal Court in particular (i.e., “victor’s justice”, “show trials”, “peace vs. justice”). I argue that unless Chehtman is able to demonstrate that the enforcement of International Criminal Law is able to impart dignity and security on the most vulnerable, his account will be significantly weakened. (shrink)

Business actors create and operate in global production networks that bring them in contact with regulatory frameworks across multiple levels and domains. Importantly, they also participate in shaping those regulatory frameworks. But what are the specific interests they pursue in their involvement in regulation? Traditionally, scholars tended to assume that the focus of business actors is primarily on avoiding (stringent) public regulation. Recent developments have highlighted a broader range of business interests, however. Accordingly, this paper investigates business positions on the (...) ascription of duties and rights in regulation, specifically in the fields of due diligence, supply chain liability, and extraterritorial jurisdiction. The paper explores these issues in the context of business regulation in the field of Human Rights, looking at the United Nations Guiding Principles on human rights, their German implementation in the ‘Nationaler Aktionsplan Wirtschaft und Menschenrechte’ and the associated processes, in particular. (shrink)

Environmental rights are diagonal if they are held by individuals or groups against the governments of states other than their own. The potential importance of such rights is obvious: governments' actions often affect the environment beyond their jurisdiction, and those who live in and rely upon the environment affected would like to be able to exercise rights against the governments causing them harm. Although international law has not adopted a comprehensive, uniform approach to such rights, human rights law and (...) international environmental law have begun to develop some possible bases for diagonal environmental rights. Human rights law operates primarily along a vertical axis, setting out individuals' rights against their governments and the corresponding duties owed by the governments, but it may also be diagonal, giving rise to duties on the part of states that extend beyond their own territory. The scope and extent of diagonal human rights are often controversial, and environmental rights face additional difficulties, because the environmental protection required by human rights is clarifying only gradually, on a case-by-case basis. To the extent that human rights require such protection when aligned vertically, it would be logical to conclude that they require the same degree of protection whenever they may be aligned diagonally. Human rights law provides few precedents to support that conclusion, however. Compared to human rights law, international environmental law (IEL) provides a clearer and more specific set of duties with respect to environmental protection. Moreover, most IEL is extraterritorial, in that it requires states to regulate actions within their control that could harm the environment beyond their territory. The problem with grounding diagonal environmental rights in IEL is that, in contrast to human rights law, most IEL operates along a horizontal axis: its duties are owed by states to other states, not to private actors. If the challenge for human rights law is to extend rights from the vertical axis to the diagonal, the challenge for IEL is to derive diagonal rights from horizontal ones. (shrink)

This article challenges the orthodox view of international law, according to which states have no legal duty to cooperate. It argues for this legal duty in the context of COVID-19, based on the ethical principles of solidarity, stewardship, and subsidiarity. More specifically, the article argues that states have a legal duty to cooperate during a pandemic (as solidarity requires); and while this duty entails an extraterritorial responsibility to care for and assist other nations (as stewardship requires), the legal duty (...) to cooperate still allows states to attend first to the basic needs of those under their own jurisdiction—namely, fellow nationals and residents (as subsidiarity requires). The article provides a definition and philosophical justifications for this legal duty that are lacking in the literature by examining its application to a current COVID-19 controversy: namely, states’ responsibility to assist other countries in greater need by, inter alia, exporting at a discount or donating scarce COVID-19 treatments (including vaccines). In providing a principled tripartite account of pandemic governance, this conceptual and normative article offers a new lens for debating the potential international treaty for pandemic prevention, preparedness, and response that has now been drafted and is under negotiation at the World Health Assembly, by responding to the recent backlash against multilateralism by substantiating global co-responsibilities in times of pandemics and beyond. (shrink)

This chapter provides an overview of the key European Union (EU) competition law provisions, focusing on their impact on the global economy and how this impact is managed. It considers the main transnational themes that arise. The first is the age‐old question of the extent to which national law applies across its borders. The second is the question of externalities, which has two ramifications. The first is an economic one, whereby the concern is that the enforcement of competition law in (...) one jurisdiction may have negative repercussions in others, reducing global welfare. The second branch is political in character and arises when the enforcement of competition law in one jurisdiction harms the economic interests of firms abroad. A third theme is collaboration among agencies in the context of global anticompetitive conduct. A fourth theme is hypocrisy. The chapter also sketches how competition policy became the European Union's first supranational policy. (shrink)

This chapter contains sections titled: Endnotes.

In this article, I interrogate how the UK government constructs and manipulates the idiom of the vulnerable female, trafficked migrant. Specifically, I analyse how the government aligns aspects of its anti-trafficking plans with plans to enhance extraterritorial immigration and border control. In order to do this, I focus on the discursive strategies that revolve around the UK’s anti-trafficking initiatives. I argue that discourses of human trafficking as prostitution, modern-day slavery and organised crime do important work. Primarily, they provide the (...) government with a moral platform from which it can develop its regulatory capacity overseas. It is not my intention to suggest that the government’s anti-trafficking plans are superficial, and that extraterritoriality is the sole driver. On the contrary, I argue that complex interrelationships exist and while the government’s interest in protecting vulnerable women from sexual exploitation may seem to be paramount, I assert that in fact it intersects with other agendas at key points. I consider how government action to protect vulnerable women in trafficking ‘source’ and ‘transit’ countries such as development aid and repatriation schemes relate to broader legal and political concerns about protecting the UK from unwanted ‘Others’. (shrink)

Is it possible for the state simultaneously to respect deep cultural differences and to protect the hard-won citizenship rights of vulnerable group members, particularly women? This 2001 book argues that it is not only theoretically needed, but also institutionally feasible. Rejecting prevalent normative and legal solutions to this 'paradox of multicultural vulnerability', Multicultural Jurisdictions develops a powerful argument for enhancement of the jurisdictional autonomy of religious and cultural minorities while at the same time providing viable legal-institutional solutions to the problem (...) of sanctioned intra-group rights violation. This new 'joint governance' approach is guided by an innovative principle that strives for the reduction of injustice between minority groups and the wider society, together with the enhancement of justice within them. This book will interest students of political and social theory, law, religion, institutional design, as well as cultural and gender studies. (shrink)

Since the early 2000s, the United States’ different administrations of justice have been prosecuting foreign companies suspected of violating US laws on bribery of foreign public officials and of failing to respect embargoes and economic sanctions. Even if these violations take place outside US borders, the American prosecution authorities consider themselves legitimate to intervene. European multinationals have been particularly sanctioned. For instance, in 2014, fines reached up to 9 billion dollars for the French bank BNP, which was accused of using (...) dollars in its transactions with certain countries sanctioned by the US. Punishing companies and hitting them in the wallet are not the only objectives of the American administration. The United States takes advantage of legal procedures against foreign companies to collect millions of bytes of data, sometimes including sensitive information on them as well as on their partners and markets. Facing this legal offensive, Europe is still struggling to provide responses to protect its companies. (shrink)

People can be autonomous, if they are subject to authority. In particular, they can be autonomous if they are subject to the authority of law. I defend the first claim through a study of Joseph Raz's compelling account of authority; I claim that his work leads to the conclusion that autonomous judgment is needed to determine the jurisdiction of an authority, and to interpret its directives. I defend the second claim by arguing that law does not claim unlimited (...) class='Hi'>jurisdiction, and need not claim unlimited scope for its directives. But the requirements of the rule of law create a standing risk that the law will not adequately recognize the autonomy of its subjects, because of its artificial techniques for controlling its own jurisdiction and for controlling the scope of its own directives. (shrink)

Deleuze and jurisdiction : expressionism in jurisprudence -- Personal jurisdiction : the "method of dramatization" in the law of persons -- Minority and personal jurisdiction : judging sex in re alex -- Persons of animal law -- Deleuze, the law of things and subject-matter jurisdiction -- To put to flight : the right of possession -- The activity of judgment : law of actions and the procedural genre of jurisprudence -- Jurisdiction of control : judgment (...) and procedural forms in Thomas v Mowbray -- The locality of law : jurisdiction in Deleuze. (shrink)

Book Review: Noam Lubell, Extraterritorial Use of Force against Non-State Actors.

Although the Lisbon Treaty maintained the general exclusion of Common Foreign and Security Policy (CFSP) matters from ECJ jurisdiction, it introduced a number of changes into this area, including an explicit statement that the Court is competent to review the legality of the Council decisions imposing restraining measures on persons. The article analyzes the nature and origin of those changes and considers the legal implications for the level of the protection of fundamental rights in the European Union. For this (...) purpose the author firstly considers the context of the exclusion of CFSP matters from the ECJ jurisdiction, including discussions on the issue at the European Convention, and, secondly, takes a closer look at the separate heads of jurisdiction over which the Court is competent to act after the entry into force of the Lisbon Treaty. A conclusion is made that the Lisbon Treaty did not introduce significant changes to ECJ jurisdiction. Similarly to the pattern of previous amendment treaties, the Lisbon Treaty again gave recognition to the practice of the ECJ on relevant questions. Nonetheless, the amendments made by the Lisbon Treaty should be welcome for introducing more clarity into the legal regulation of the matter, thus boosting the legal certainty and protection of fundamental rights in the European Union. (shrink)

Functionalists hold that the territorial rights of states are grounded solely in their successful performance of their morally mandated functions. In this paper, I defend a distinctive functionalist view of the right of territorial jurisdiction. I develop this view over the course of considering a variety of objections to functionalism that arise from reflection on cases of non- violent and otherwise rights-respecting annexation. Functionalism’s critics argue that it is committed to counterintuitive implications in these cases, as it is unable (...) to explain why the usurper states do not gain rights over the territory they take over. Against these critics, I argue that functionalism can in fact deliver intuitively plausible verdicts regarding: (a) the territorial rights of unsuccessful states; (b) the morality of military occupation; and (c) the appropriate response to past territorial injustices. (shrink)

Positivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set of legal facts in private international law—the law of jurisdiction—that concerns when a community's law practices can, and (...) cannot, have the legal effects that the practices claim to have. This law is noncommunitarian, in the sense that it precedes the communities to which it applies. In this law's light, the legal effects of communities’ law practices are legally coordinated (or, at the very least, can be shown to legally conflict). Although interest in, and even commitment to, a noncommunitarian law of jurisdiction has receded among private international law theorists, I argue that some well-placed questions can elicit from all of us a commitment to this law. And this commitment is a reason to believe that the moral impact theory is correct. (shrink)

Although sovereign jurisdictional authority is not itself a kind of property right for Hobbes, it is the object of the sovereign’s (not the state’s) proprietary rights. Jurisdictional authority for Hobbes is foundationally over persons rather than territory, so that the sovereign’s territorial jurisdiction is parasitic on jurisdiction over persons. Territory nevertheless plays a significant role in determining subjects’ political obligations because the sovereign’s ability to protect subjects is necessary for such obligations, and control over space is necessary to (...) protect subjects. Yet Hobbes shows why the modern ideology of the state does not univocally posit the state as an intrinsically territorial entity. There are two traditions here: The Lockean one that, in grounding jurisdictional authority in private dominion over things, portrays the state as intrinsically territorial, and the Hobbesian one that, in deriving property rights from jurisdictional authority, does not. (shrink)

Jurisdiction, Scale and Governance: Chronotopes of Law develops a post-metaphysical framework for analyzing the spatio-temporal workings of law and other forms of governance. In this regard, it does not seek merely to combine analyses of legal temporality carried out by anthropologists with analyses of law and space carried out by geographers and socio-legal scholars. Adding two metaphysical abstractions together does not produce anything but somewhat more complex, but equally metaphysical, abstractions. After Kant, 'time' and 'space' are simply categories of (...) human understanding, not metaphysical entities. And, in this book Mariana Valverde develops an anti-metaphysical theoretical approach to law that aims not to theorize the world in general, but rather to be useful to researchers who seek to shed light on the actual workings of law and other forms of governance. Written by one of the foremost theorists in the area, this theoretically innovative work constitutes a major contribution to contemporary studies in law and society. (shrink)

Book Information Multicultural Jurisdictions: Cultural Differences and Women's Rights. By Ayelet Shachar. Cambridge University Press. Cambridge. 2001. Pp. xiv + 193. Hardback, Aus.$140. Paperback, $48.95.

Book Information Multicultural Jurisdictions: Cultural Differences and Women's Rights. By Ayelet Shachar. Cambridge University Press. Cambridge. 2001. Pp. xiv + 193. Hardback, Aus.$140. Paperback, $48.95.

The proposed reflection intends to present the problem of judicial adjudication as a substantially-axiologically founded autonomous moment on the practical realization of law, and to explore this understanding in confrontation with external exigencies, mostly teleologically determined—hence, beyond strict deductive application, as a syllogistic reference of facts to norms, and finalistically determined decision, as an option among possible alternatives to achieve specific aims. The main objective is to enter into a discussion on the methodological meaning of “integrity”, “hard cases” and “right (...) answer”, as presented by Ronald Dworkin, and a critical reflection on the criticism of that approach levelled by Neil MacCormick, so as to confront the relevance of principle and policy arguments, in order to bring about a different methodological approach, an alternative jurisprudentialist conception of adjudication, incorporating a practical-normative constitutive dialectics between legal controversy and legal system, such as that presented by Castanheira Neves. The focus will, then, be the legitimacy of the connection of arguments of principle and consequentialist arguments in adjudication, its selection and its justification, stating, therefore, a specifically assumed judicium, a judicative decision, having the legal system as its horizon of normative reference and of substantial and institutional autonomy. (shrink)

Davidovic asks what gives the international community the authority to punish some crimes? On one prominent view some crimes (genome, torture) are so heinous that the international community, so long as its procedures are fair, is justified in prosecuting them. Another view contends that heinousness alone is not enough to justify international prosecution: what is needed is an account of why the international community, in particular, has standing to hold the perpetrators to account. Davidovic raises concerns about both of these (...) views and then defends her own account. On her view, the heinousness of the crimes is relevant, but what makes these crimes the business of the international community is that the community in fact recognizes certain norms against especially heinous crimes. If the international community fails to prosecute and punish those who perpetrate these crimes, this impunity undermines the rule of law, and thereby hinders the maintenance of peace the the protection of human rights. (shrink)

This article analyses jurisdiction regarding administrative proceedings (lawsuits) in Jordan and France. Moreover, it also discusses the fact that jurisdiction regulates two matters of the utmost importance: the distribution of jurisdiction between ordinary and administrative jurisdictions and the distribution of jurisdiction between administrative jurisdictions themselves in States whose jurisdiction in administrative proceedings is distributed to more than one administrative organ. Moving on, this research was conducted using several research approaches such as, the comparative and analytical (...) approach. The research concluded with a number of conclusions and recommendations, the most important of which was the establishment of an Administrative Proceedings Management Service (APMS), as did the French Administrative Judicial Code, in which attendance was compulsory. To add on, the office of the Administrative Proceedings Administration must have a judge of its own, which corresponds to the post of the judge in the French Administrative Court. The judge will handle the completion of the data regarding both lawsuit parties, and request the documents needed for the case at hand. With that being said, the Jordanian Constitutional Court must reverse its interpretative decision, stating that the administrative justice is part of the ordinary judiciary—in referral to The Constitutional Court’s interpretation of the provisions of the Constitution, which considered the administrative judiciary as an integral part of the ordinary judiciary. Lastly, the research concluded that The French Administrative Judiciary must be taken into consideration regarding the establishment of an administrative judiciary independent from all aspects of the ordinary judiciary, and the explicit introduction of the dual judicial system. (shrink)

Questions of jurisdiction -- The metaphysics of jurisdiction -- On the founding of law's jurisdiction and the politics of sexual difference : the case of Roman law -- Guantanamo Bay, abandoned being and the constitution of jurisdiction -- Conjuring Palestine : the jurisdiction of dispossession -- Jurisdiction and nation-building : tall tales in nineteenth-century Aotearoa/New Zealand -- The suppression of state interests in international litigation -- Mapping territories -- Placing jurisdiction -- A (...) class='Hi'>jurisdiction of body and desire : exploring the boundaries of bodily control in prostitution law -- Subjects of jurisdiction : the dying, Northern Territory, Australia, 1995-1997 -- Embracing jurisdiction : John Ford's The man who shot Liberty Valance -- Jurisdiction and the colonisation of sublime enjoyment. (shrink)

Large data-intensive health research programmes benefit from collaboration amongst researchers who may be located in different institutions and international contexts. However, complexities in navigating privacy frameworks and data protection laws across various jurisdictions pose significant challenges to researchers seeking to share or transfer data outside of institutional boundaries. Research on the awareness of data protection and privacy laws amongst stakeholders is limited. Our qualitative study, drawn from a larger project in Singapore, revealed insights into stakeholders’ perceptions of the role of (...) law in cross-national health data research. Stakeholders in our study demonstrated a range of perceptions regarding the role of data protection law in governing the collection and transfer of health data for research. The main criticisms included inadequate legal protection to data and lack of uniformed data protection standards. Despite these criticisms, participants recognised the importance of data protection law in supporting cross-border data transfers and proposed measures to improve perceived limitations of existing laws. These measures include strengthening existing legal framework, establishing contractual agreements and imposing severe punishments for data misuse. (shrink)