The Oxford Handbook of Jurisdiction in International Law 019878614X, 9780198786146

The Oxford Handbook of Jurisdiction in International Law provides an authoritative and comprehensive analysis of the con

406 25 5MB

English Pages 624 [613] Year 2019

Table of contents :
Acknowledgements
Contents
Table of Cases
Table of Legislation
List of Contributors
PART I: INTRODUCTION
1. Introduction: Defining State Jurisdiction and Jurisdictionin International Law • Stephen Allen, Daniel Costelloe, Malgosia Fitzmaurice, Paul Gragl, and Edward Guntrip
PART II: HISTORY
2. The Beginnings of State Jurisdiction in International Law until 1648 • Kaius Tuori
3. The Lotus Case in Context: Sovereignty, Westphalia, Vattel, and Positivism • Stéphane Beaulac
4. The European Concept of Jurisdiction in the Colonies • Nurfadzilah Yahaya
5. Immanuel Kant and Jurisdiction in International Law • Stephan Wittich
PART III: THEORY
6. Navigating Diffuse Jurisdictions: An Intra-State Perspective • Helen Quane
7. Jurisdictional Pluralism • Paul Schiff Berman
8. Deepening the Conversation between Socio-Legal Theory and Legal Scholarship about Jurisdiction • Mariana Valverde
9. Critical Approaches to Jurisdiction and International Law • Shaun McVeigh
PART IV: GENERAL INTERNATIONAL LAW
10. Cosmopolitan Jurisdiction and the National Interest • Cedric Ryngaert
11. Jurisdictional Immunities of the State in International Law • Paul Gragl
12. The Establishment, Change, and Expansion of Jurisdiction through Treaties • Dino Kritsiotis
13. Territoriality and Globalization • Uta Kohl
14. Private Interests and Private Law Regulation in Public International Law Jurisdiction • Alex Mills
15. Jurisdiction and State Responsibility • Kimberley N. Trapp
16. Enforcing Criminal Jurisdiction in the Clouds and International Law’s Enduring Commitment to Territoriality • Stephen Allen
PART V: CONTEXTUALIZING JURISDICTION: SUBSTANTIVE AND INSTITUTIONAL ISSUES
17. The ‘J’ Word: Driver or Spoiler of Change in Human Rights Law? • Wouter Vandenhole
18. International Investment Law, Hybrid Authority, and Jurisdiction • Edward Guntrip
19. Conceptions of State Jurisdiction in the Jurisprudence of the International Court of Justice and the Permanent Court of International Justice • Daniel Costelloe
20. The Evolving Nature of the Jurisdiction of the Security Council: A Look at Twenty-First-Century Practice • Blanca Montejo and Georg Kerschischnig
21. International Criminal Jurisdiction • Kirsten Schmalenbach
22. Jurisdiction and International Territorial Administration • James Summers
Index

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OUP CORRECTED PROOF – FINAL, 08/19/2019, SPi

T h e Ox f o r d H a n d b o o k o f

J U R ISDIC T ION I N I N T E R NAT IONA L L AW

OUP CORRECTED PROOF – FINAL, 08/19/2019, SPi

OUP CORRECTED PROOF – FINAL, 08/19/2019, SPi

The Oxford Handbook of

JURISDICTION IN INTERNATIONAL LAW Edited by

STEPHEN ALLEN, DANIEL COSTELLOE, MALGOSIA FITZMAURICE, PAUL GRAGL, and

EDWARD GUNTRIP

1

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1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The Several Contributors 2019 The moral rights of the authors have been asserted First Edition published in 2019 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2019941381 ISBN 978–0–19–878614–6 Printed and bound by CPI Group (UK) Ltd, Croydon, cr0 4yy Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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Acknowledgements

In 2015/16, Stephen Allen and Paul Gragl convened a joint seminar series dedicated to the theme of jurisdiction involving two Queen Mary Research Centres—the Centre for European & International Legal Affairs (CEILA) and the Centre for Law & Society in a Global Context (CLSGC). We designed this series in a way that would assist in the development of this project. Accordingly, many of the speakers and participants in this Series are also contributors to this Handbook. We are grateful to all those who delivered presentations and supported these events as they were instrumental in pushing this substantial publishing project forward. Subsequently, on 29 November 2017, under the auspices of CEILA, we organized a work-in-progress workshop to facilitate the development of this Handbook. In particular, we would like to take this opportunity to thank Professor Valsamis Mitsilegas, Head of the Law Department at Queen Mary, for generously supporting these events. The editors wish to express their deep gratitude to the contributors to this Handbook for their firm commitment to this project and for their cooperation and collegiality in finalizing the book. Finally, we are indebted to Merel Alstein at Oxford University Press. Her constant encouragement and support throughout the entire process of developing this book have been vital to the success of this project.

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Contents

Table of Casesxi Table of Legislationxxi List of Contributorsxxvii

PA RT I I N T RODU C T ION 1. Introduction: Defining State Jurisdiction and Jurisdiction in International Law

3

Stephen Allen, Daniel Costelloe, Malgosia Fitzmaurice, Paul Gragl, and Edward Guntrip

PA RT I I H I S TORY 2. The Beginnings of State Jurisdiction in International Law until 1648

25

Kaius Tuori

3. The Lotus Case in Context: Sovereignty, Westphalia, Vattel, and Positivism40 Stéphane Beaulac

4. The European Concept of Jurisdiction in the Colonies

59

Nurfadzilah Yahaya

5. Immanuel Kant and Jurisdiction in International Law

81

Stephan Wittich

PA RT I I I T H E ORY 6. Navigating Diffuse Jurisdictions: An Intra-State Perspective

99

Helen Quane

7. Jurisdictional Pluralism Paul Schiff Berman

121

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viii contents

8. Deepening the Conversation between Socio-Legal Theory and Legal Scholarship about Jurisdiction

161

Mariana Valverde

9. Critical Approaches to Jurisdiction and International Law

182

Shaun McVeigh

PA RT I V G E N E R A L I N T E R NAT IONA L L AW 10. Cosmopolitan Jurisdiction and the National Interest

209

Cedric Ryngaert

11. Jurisdictional Immunities of the State in International Law

228

Paul Gragl

12. The Establishment, Change, and Expansion of Jurisdiction through Treaties251 Dino Kritsiotis

13. Territoriality and Globalization

300

Uta Kohl

14. Private Interests and Private Law Regulation in Public International Law Jurisdiction

330

Alex Mills

15. Jurisdiction and State Responsibility

355

Kimberley N. Trapp

16. Enforcing Criminal Jurisdiction in the Clouds and International Law’s Enduring Commitment to Territoriality

381

Stephen Allen

PA RT V C ON T E X T UA L I Z I N G J U R I SDIC T ION : SU B STA N T I V E A N D I N S T I T U T IONA L I S SU E S 17. The ‘J’ Word: Driver or Spoiler of Change in Human Rights Law?

413

Wouter Vandenhole

18. International Investment Law, Hybrid Authority, and Jurisdiction Edward Guntrip

431

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contents ix

19. Conceptions of State Jurisdiction in the Jurisprudence of the International Court of Justice and the Permanent Court of International Justice

455

Daniel Costelloe

20. The Evolving Nature of the Jurisdiction of the Security Council: A Look at Twenty-First-Century Practice

481

Blanca Montejo and Georg Kerschischnig

21. International Criminal Jurisdiction

504

Kirsten Schmalenbach

22. Jurisdiction and International Territorial Administration

529

James Summers

Index

553

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Table of Cases

International Cases Ad Hoc Arbitration Republic of Italy v Republic of Cuba, Interim Award, 15 March 2005; Final Award, 15 January 2008 ��449

Court of Justice of the European Union Ahlström v Commission (Woodpulp Case), Case C-89/85, [1993] ECR I-0130 �� 346 Air Transport Association of America et al. v Secretary of State for Energy and Climate Change, Case C-366/10, [2011] ECR I-13755, ECLI:EU:C:2011:864��18, 210–11 Commission and Others v Kadi, Case C-584/10 P, ECLI:EU:C:2013:518 (Kadi II)��501 ICI Ltd v Commission, Case 48/69, EU:C:1972:70 �� 399 Kadi and Al Barakaat v Council and Commission, Joined Cases C-402/05 and C-415/05, [2008] ECR I-6351�� 247 Owusu v Jackson, Case C-281/02, [2005] ECR I-1383�� 315, 317 Owusu v Jackson, Case C-281/02, [2005] ECR I-1386 (Opinion of Advocate General Léger)��317, 322 Trade Agency Ltd v Seramico Investments Ltd, Case C-619/10, EU:C:2012:531 346

ECOWAS Court of Justice Hissène Habré v Republic of Senegal, Case No. ECW/CCJ/JUD/06/10, 18 November 2010�� 292

European Commission of Human Rights Stocké v Germany, no. 11755/85��362, 368, 370, 371, 372, 376, 378

European Court of Human Rights Al-Adsani v The United Kingdom [GC], no. 35763/97, 21 November 2001 ��232, 238, 243, 244, 365 Al-Skeini and Others v The United Kingdom [GC], no. 55721/07, 7 July 2011, (2011) 53 EHRR 18 �� 392, 418, 419, 420, 423, 424, 547 Andreou v Turkey, no. 45653/99, 27 October 2009��421 Appleby and Others v The United Kingdom, no. 44306/98 (2003), 37 EHRR 38 �� 100 Associazione Nazionale Reduci and 275 Others v Germany, no. 45563/04, 4 September 2007 ��233 Banković and Others v Belgium and Others, [GC], no. 52207/99, 12 December 2001 �� 414, 417, 418, 424, 546 Behrami v France; and Saramati v France, Germany and Norway, no. 78166/01, 2 May 2007�� 546, 547 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v Ireland, [GC], no. 45036/98, 30 June 2005�� 546

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xii table of cases Catan and Others v The Republic of Moldova and Russia, nos. 43370/04, 8252/05 and 18454/06, 19 October 2012 ��418, 545 Chiragov and Others v Armenia [GC], no. 13216/05, 16 June 2015��418, 421 Colozza v Italy, 12 February 1985, Series A no. 89 �� 344 Cudak v Lithuania, no. 15869/02, 23 March 2010��232 Cyprus v Turkey, no. 25781/94, 10 May 2001��545 Dušan Berić and Others v Bosnia and Herzegovina, nos. 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05, 16 October 2007�� 546 Fogarty v The United Kingdom [GC], no. 37112/97, 21 November 2001��232 Golder v The United Kingdom, no. 4451/70, 21 February 1975, Series A no. 18, [1975] 1 EHRR 524��336 Grosz v France, no. 14717/06, 16 June 2009 ��232 Handyside v The United Kingdom, no. 5493/72, 7 December 1976, Series A no. 24�� 468 Hirsi Jamaa and Others v Italy [GC], no. 27765/09, 2012-II 97��417 Ilaşcu and Others v Moldova and Russia [GC], no. 48787/99, 8 July 2004 ��425, 545 Ilaz Kasumaj v Greece, no. 6974/05, 5 July 2007 �� 546 Jaloud v The Netherlands [GC], no. 47708/08, 20 November 2014�� 419, 420, 421, 426, 547 Jorgic v Germany, no. 74613/01, 12 July 2007 �� 211 Kalogeropoulou and Others v Greece and Germany, no. 59021/00, 12 December 2002�� 234 Loizidou v Turkey (preliminary objections), 23 March 1995, Series A no. 310 ��421 Loizidou v Turkey (merits), 18 December 1996, Reports of Judgments and Decisions 1996-V��545 Matthews v The United Kingdom [GC], no. 24833/94, 18 February 1999�� 546 McElhinney v Ireland [GC], no. 31253/96, 21 November 2001��232 Medvedyev and Others v France, no. 3394/03, 10 July 2008��418 Mozer v The Republic of Moldova and Russia [GC], no. 11138/10, 23 February 2016��418 Naït-Liman v Switzerland [GC], no. 51357/07, 15 March 2018 ��95, 343 Öcalan v Turkey [GC], no. 46221/99, 12 May 2005 �� 362, 367, 368, 371, 372, 374, 379, 417 Ould Dah v France no. 13113/03, 17 March 2009 ��362 Pisari v The Republic of Moldova and Russia, no. 42139/12, 21 April 2015��420 Refah Partisi (the Welfare Party) and Others v Turkey [GC], nos. 41340/98 and 3 others ��107 Ringeisen v Austria (Interpretation), no. 2614/65, 23 June 1972, Series A no. 16��510 Sabeh El Leil v France [GC], no. 34869/05, 29 June 2011 ��232 Sargsyan v Azerbaijan [GC], no. 40167/06, 16 June 2015 �� 425, 426 Slavisa Gajic v Germany, no. 31446/02, 28 August 2007�� 546 Waite and Kennedy v Germany [GC], no. 26083/94, 18 February 1999�� 548 Wallishauser v Austria, no. 156/04, 17 July 2012��232

General Court of the European Union Kadi v Commission, Case T-315/01, [2005] ECR II-3649�� 245, 247, 248, 501, 502

Human Rights Advisory Panel Agim Behrami v UNMIK (Decision on Admissibility), Case No. 24/08, 17 October 2008�� 549 Kadri Balaj and Others v UNMIK (Decision on Admissibility), Case No. 04/07, 6 June 2008�� 549

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table of cases xiii Kadri Balaj and Others v UNMIK (Decision on Admissibility), Case No. 04/07, 31 March 2010��550 Kadri Balaj and Others v UNMIK (Decision on Admissibility), Case No. 04/07, 11 May 2012��550 Kadri Balaj and Others v UNMIK (Opinion), Case No. 04/07, 27 February 2015��550 Olga Lajović v UNMIK (Decision on Admissibility), Case No. 09/08, 16 July 2008�� 549

Human Rights Committee Basem Ahmed Issa Yassin and Others v Canada, App. No. 2285/2013, 26 October 2017 (adm), UN Doc. CCPR/C/120/D/2285/2013 �� 422 Brief of the Government of Canada as Amicus Curiae in Support of Respondent (Alvarez-Machain) (1992) 31 ILM 921 �� 367, 375 Domukovsky and Others v Georgia (29 May 1998), UN Doc. CCPR/C/62/D/623/1995��367 López Burgos v Uruguay, App. No. 52/1979, 29 July 1981, UN Doc. CCPR/C/13/D/52/1979 �� 422 Mohammad Munaf v Romania, App. No. 1539/2006, 13 July 2009, UN Doc. CCPR/C/96/ DR/1539/2006�� 422 Sergio Euben Lopez Burgos v Uruguay (29 July 1981), UN Doc. A/36/40 (1981) �� 367, 378

Inter-American Commission of Human Rights Franklin Guillermo Aisalla Molina and Ecuador v Colombia, Report no. 112/10 ��415, 417, 423, 424

Inter-American Court of Human Rights Coard and Others v United States, Report No. 109/99, 29 September 1999��415 Mayagna (Sumo) Awas Tingni Community v Nicaragua, Series C No. 79, 31 August 2001 �� 106 Norín Catrimán and Others v Chile, Series C No. 279, 29 May 2014��363

International Centre for Settlement of Investment Disputes Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, 24 July 2008��444 Luchetti v Republic of Peru, ICSID Case No. ARB/03/4, Award on Jurisdiction, 7 February 2005��449 SAUR International SA v Argentine Republic, ICSID Case No. ARB/04/4, Decision on Jurisdiction and Liability, 6 June 2012 ��444 Suez, Sociedad General de Aguas de Barcelona SA and Interagua Servicios Integrales de Agua SA v Argentine Republic, ICSID Case No ARB/03/17, Decision on Liability, 30 July 2010��444 Urbaser SA and Consorcio de Aguas Bilbao Biskaia, Bilbao Biskaia Ur Partzuergoa v Argentine Republic, ICSID Case No. ARB/07/26, Award, 8 December 2016�� 444, 445, 446

International Court of Justice Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, 22 July 2010, [2010] ICJ Rep. 403 ��56, 57 Aegean Sea Continental Shelf (Greece v Turkey), [1978] ICJ Rep. 3�� 463 Anglo-Iranian Oil Co. (United Kingdom v Iran) Judgment, 22 July 1952, [1952] ICJ Rep. 93�� 468 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep. 12 �� 247

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xiv table of cases Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, [2007] ICJ Rep. 43�� 111, 265, 266 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility, 3 February 2006, [2006] ICJ Rep. 6�� 245 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment, 14 February 2002, [2002] ICJ Rep. 3�� 57, 223, 229, 232, 273, 274, 279, 283, 291, 297, 358, 474, 477 Barcelona Traction, Light and Power Co. Ltd (Belgium v Spain), Judgment, 5 February 1970, [1970] ICJ Rep. 3�� 93, 349, 467 Certain Expenses of the United Nations (Article 17 paragraph 2, of the Charter), Advisory Opinion, 20 July 1962, [1962] ICJ Rep. 151�� 520 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), Judgment, 4 June 2008, [2008] ICJ Rep. 177 �� 232, 479 Corfu Channel (United Kingdom v Albania), Judgment (Merits), 9 April 1949, [1949] ICJ Rep. 4 �� 56, 458 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 29 April 1999, [1999] ICJ Rep 62�� 544 Effect of Awards of Compensation Made by the UN Administrative Tribunal, Advisory Opinion, 13 July 1954, [1954] ICJ Rep. 47 ��507, 520 Gabcíkovo-Nagymaros Project (Hungary v Slovakia), Judgment, 25 September 1997, [1997] ICJ Rep. 7��363 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, 30 March 1950, [1950] ICJ Rep. 65��464–5 Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening), Judgment, 3 February 2012, [2012] ICJ Rep. 99�� 15, 231, 233, 234, 235, 236, 237, 238, 239, 241, 242, 243, 244, 248, 479 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, [2004] ICJ Rep. 136 �� 246, 416 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, [1996] ICJ Rep. 226 ��55, 56, 474, 475 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996, [1996] ICJ�� 509 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Judgment, 16 March 2001, [2001] ICJ Rep. 40 ��17 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgment, 27 June 1986, [1986] ICJ Rep. 14��55, 187, 309, 363, 456 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, 20 February 1969, [1969] ICJ Rep. 3 �� 55, 265, 359 Northern Cameroons (Cameroon v UK), Judgment (Preliminary Objections), 2 December 1963, [1963] ICJ Rep. 15��510 Nottebohm (Liechtenstein v Guatemala), Judgment (Preliminary Objections), 18 November 1953, [1953] ICJ Rep. 111�� 506 Nottebohm Case (Liechtenstein v Guatemala) Second Phase, Judgment, 6 April 1955, [1955] ICJ Rep. 4 �� 6 Nuclear Tests (Australia v France), Judgment, 20 December 1974, [1974] ICJ Rep. 253��510 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment 20 July 2012, [2012] ICJ Rep. 422��233, 292, 416

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table of cases xv Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 11 April 1949, [1949] ICJ Rep. 174�� 459 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 1951, [1951] ICJ Rep. 15 �� 265 Right of Passage over Indian Territory (Portugal v India), Judgment (Preliminary Objections), 26 November 1957, [1957] ICJ Rep. 125��466

International Criminal Court Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute (Myanmar case), ICC-RoC46(3)-01/18, ICC Pre-Trial Chamber I, 6 September 2018��514, 526 Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammad Jerbo Jamus, ICC-02/05-03/09, ICC Trial Chamber IV, 26 October 2012 ��510, 511 Prosecutor v Jean Pierre Bemba Combo and Others, ICC-01/05-01/13 A6 A7 A8 A9, Appeals Chamber, 8 March 2018��511 Prosecutor v Kony, Decision on the admissibility of the case under Article 19(1) of the Statute, ICC–02/04–01/05–377, ICC Pre-Trial Chamber II, 10 March 2009�� 512 Prosecutor v Thomas Lubanga Dyilo, ICC-01/04-01/06, Appeals Chamber, 1 December 2014 �� 524 Situation in the Islamic Republic of Afghanistan, ICC-02/17, Pre-Trial Chamber, 12 April 2019�� 526

International Criminal Tribunal for Former Yugoslavia Prosecutor v Dragan Nikoli, Case No. IT-94-2, 18 Dec 2003�� 369, 379 Prosecutor v Fatmir Limaj, Haradin Bala, Isak Musliu, Case No. IT-03-66-T, 30 November 2005�� 538, 539 Prosecutor v Milan Milutinović and Others, Case No. IT-05-87-T, 26 February 2009 �� 538, 539 Prosecutor v Milosevic, Decision on Preliminary Motions, IT-02–54, Appeals Chamber, 8 November 2001�� 518 Prosecutor v Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj, Case No. IT-04-84-T, 3 April 2008 ��538 Prosecutor v Slobodan Milosević, Milan Milutinović, Nikola Sainović, Dragoljub Ojdanić and Vlajko Stojiljković, Indictment, Case No. IT-99–37, 22 May 1999�� 538, 539 Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, ICTY Appeals Chamber, 2 October 1995�� 511, 514, 518, 519, 520 Prosecutor v Vlastimir Dordević, Case No. IT-05.87/1-T, 23 February 2011 ��538

International Criminal Tribunal for Rwanda Prosecutor v Kanyabashi, Decision on Jurisdiction, Case No. ICTR-96-15-T, 8 June 1997 ��519

League of Nations Åland Islands dispute (1921)��461

North American Free Trade Agreement Thunderbird Gaming Corp. v United Mexican States, Award of 26 January 2006�� 468

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xvi table of cases Permanent Court of Arbitration Island of Palmas (Netherlands v United States of America), (1928) 2 RIAA 829�� 42, 384, 457 Republic of Ecuador v United States of America, PCA Case No. 2012–05��449

Permanent Court of International Justice Diversion of Water from the River Meuse (Netherlands v Belgium), [1937] PCIJ Series A/B No. 70��223 Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria), Preliminary Objection, [1939] PCIJ Series A/B, No. 77��466 Exchange of Greek and Turkish Populations (Lausanne Convention VI, January 30th, 1923, Article 2), Advisory Opinion, [1925] PCIJ Series B, No. 10��464 Jurisdiction of the European Commission of the Danube between Galatz and Braila, Advisory Opinion, [1927] PCIJ Series B, No. 14 ��460 Legal Status of Eastern Greenland (Denmark v Norway), [1933] PCIJ Series A/B, No. 53�� 42 Losinger & Co. (Switzerland v Yugoslavia), Preliminary Objection, Order, [1936] PCIJ Series A/B No. 67�� 465 Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion), [1924] PCIJ Series B, No. 4�� 356, 461, 462, 463, 464, 467, 468 SS ‘Lotus’ (France v Turkey), [1927] PCIJ Series A, No. 10�� 6, 7, 10, 16, 20, 40–2, 47–55, 56, 57, 84, 174, 178, 257, 258, 259, 260, 308, 356, 357, 365, 382, 385, 468–74, 475, 476, 477, 516, 530 SS ‘Wimbledon’ (United Kingdom and Others v Germany), [1923] PCIJ Series A, No. 1�� 459 Territorial Jurisdiction of the International Commission of the River Oder, [1929] PCIJ Series A, No. 23��460

Special Court for Sierra Leone Prosecutor v Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Appeals Chamber 31 May 2004 �� 522, 523 Prosecutor v Gbao, Case No. SCSL-2004-15-AR72(E), Decision on Preliminary Motion on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court, Appeals Chamber, 25 May 2004��522 Prosecutor v Kallon and Kamara, Case Nos. SCSL-2004-15-AR72(E) and SCSL-2004-16AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Appeals Chamber, 13 March 2004 ��522 Prosecutor v Kallon, Constitutionality and Lack of Jurisdiction, Case No. SCSL-2004-15AR72(E) et al, Special Court for Sierra Leone, Appeals Chamber, 13 March 2004��514 Prosecutor v Moinina Fofana, Case No. SCSL-2004-14-AR72(E), Appeals Chamber, 25 May 2004��522 Prosecutor v Norman and Others, Decision on Prosecution Appeal Against the Trial Chamber’s Decision of 2 August 2004 Refusing Leave to File an Interlocutory Appeal, Case No. SCSL-04-14-T, Special Court for Sierra Leone, Appeals Chamber, 17 January 2005 ��511

Special Panels for Serious Crimes, East Timor Prosecutor v Joao Fernandez, Case No. 01/00/C.G.2000, 25 January 2000��541

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table of cases xvii Special Tribunal for Lebanon Ayyash and Others, Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, STL-11–01/PT/TC, Trial Chamber, 27 July 2012 ��519 Ayyash and Others, Decision on the Defence Appeals against the Trial Chamber’s Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, STL-11-O1/PT/AC/AR90.1, Special Tribunal for Lebanon, Appeals Chamber, 24 October 2012�� 514, 519, 520 Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I, Special Tribunal for Lebanon, Appeals Chamber, 16 February 2011�� 521 Prosecutor v El-Sayed, Decision on Appeal of Pre-Trial Judge’s Order regarding Jurisdiction and Standing, Case No. CH/AC/2010/02, Appeals Chamber, 10 November 2010�� 510, 511, 514

World Trade Organisation United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WTO Appellate Body, 7 April 2005 WT/DS285/AB/R �� 302

National Cases Argentina Corte Suprema de Justicia, 14/6/2005, ‘Simón, Julio Héctor y otros s/ privación ilegítima de la libertad,’ causa No. 17.768, S.1767.XXXVIII ��156

Austria Hoffmann v Dralle, Austrian Supreme Court, 1 Ob 171/50, 10 May 1950�� 230

Belgium Yahoo!, Court of Cassation, Case No. P13.2082.N/1, Judgment, 1 December 2015�� 17, 383, 388, 395, 401

Canada Reference re Secesssion of Quebec [1998] 2 Supreme Court Report 217 �� 56

East Timor Prosecutor v Armando dos Santos, Case No. 16/2001, 15 July 2003 (Court of Appeal) ��536

France Procureur Général v X.; General Prosecutor v X. (Wenceslas Munyeshyaka), Cour de Cassation, Chambre Criminelle, Case No. 96-82491, 6 January 1998�� 222 Re Argoud, Cour de Cassation, Chambre Criminelle, 4 June 1964, (1965) 45 ILR 90��368, 377

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xviii table of cases Germany Distomo Massacre, III ZR 245/98, BGHZ 155, 279, 26 June 2003 �� 234 Internationale Handelsgesellschaft von Einfuhr- und Vorratsstelle für Getreide und Futtermittel, BVerfGE 37, 271, 2 BvL 52/71, 29 May 1974, [1974] CMLR 540 (Solange I) ��248–9, 508 Iranische Botschaft, BVerfGE 16, 27; 30 April 1963 �� 230 Wünsche Handelsgesellschaft, Re, BVerfGE 73, 339, 22 October 1986 (Solange II) �� 249

Greece Margellos and Others v Federal Republic of Germany, Case No. 6/2002, 17 September 2002��239 Prefecture of Voiotia v Federal Republic of Germany, Case No. 11/2000, 4 May 2000 ��234, 238

Israel Government of Israel v Adolph Eichmann, 36 IRL 5, (Dist. Court Jerusalem), affirmed 36 ILR 277 (Supreme Court)��192, 194, 199, 268, 269, 270, 295, 296, 368, 512 Honigman v Attorney General (1951) ILR 542�� 268

Italy Ferrini v Federal Republic of Germany, Decision No. 5044/2004, 11 March 2004�� 233, 238 Mantelli and Others v Federal Republic of Germany, Order No. 14201/2004, 29 May 2008��233

Netherlands Netherlands v Nuhanovic, Decision No. 12/03324, 6 September 2013 (Supreme Court)�� 230

New Zealand R v Hartley [1978] 2 NZLR 199�� 368

South Africa National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another (CCT 02/14) [2014] ZACC 30; 2015 (1) SA 315 (CC); 2015 (1) SACR 255 (CC) (30 October 2014)�� 219, 221 (Supreme Court) State v Beahan, 1992 (1) SACR 307 (A)�� 370 State v Ebrahim, 1991 (2) SA 553�� 370

United Kingdom AAA and Others v Unilever plc and Another [2017] EWHC 371�� 313 AK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others (Known as Altimo) [2011] 4 All ER 1027 �� 324 Atlantic Star, The [1974] AC 436�� 315 Banco Nacional de Comercio Exterior SNC v Empresa de Telecomunicationes de Cuba SA [2007] EWCA Civ. 622�� 346 Belhaj v Straw [2017] UKSC 3��343 Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62�� 340

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table of cases xix Bodo Community and Others v Shell Petroleum Development Company of Nigeria Ltd [2014] EWHC 1973 (TCC)�� 320 Brabo, The [1949] AC 326�� 324 Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp. [1981] 1 All ER 289��510 Caparo v Dickman [1990] 2 AC 605 ��314 Carvill America Inc. v Camperdown UK Ltd [2005] EWCA Civ. 645�� 324 Chandler v Cape plc [2012] EWCA Civ. 525�� 314, 317, 322, 325 Cherney v Deripaska [2008] EWHC 1530�� 324 Citigroup Global Markets Ltd v Amatra Leveraged Feeder Holdings Ltd [2012] EWHC 1331 (Comm)�� 353 Colt Industries Inc. v Sarlie [1966] 1 WLR 440 (QB) �� 370 Connelly v Director of Public Prosecution [1964] 2 AC 1254��510 Connelly v RTZ Corp. [1998] AC 854; (1999) CLC 533��314, 315, 340 Harding v Wealands [2006] UKHL 32 ��352 Harrods (Buenos Aires) Ltd, Re [1992] Ch. 72�� 317 Holliday v Musa [2010] EWCA Civ. 335 �� 349 Horseferry Road Magistrates Court, ex parte Bennett (No. 1) [1993] UKHL 10�� 370 Huntington v Attrill [1893] AC 150 �� 344 Jones v Saudi Arabia [2006] UKHL 26�� 236, 242, 245, 343, 366 Lloyds Register of Shipping v Campenon [1995] ECR I 961��350 Lubbe v Cape plc [2000] UKHL 41�� 314, 316, 317 Lungowe and Others v Vedanta Resources plc and Another [2016] EWHC 975��313, 318, 323, 324, 328 Lungowe and Others v Vedanta Resources plc and Another [2017] EWCA Civ. 1528�� 313, 318 MacLeod v Attorney General for New South Wales (1891) AC 455�� 308 MacShannon v Rockware Glass Ltd [1978] AC 795�� 315 Maharanee of Baroda v Wildenstein [1972] 2 QB 283�� 344 Mark v Mark [2006] 1 AC 98 �� 349 Messier-Dowty Ltd v Sabena SA [2000] EWCA Civ. 48�� 353 Ministry of Defence for Iran v Faz Aviation [2007] EWHC 1042 (Comm)�� 347 Mobil Cerro Negro Ltd v Petroleos De Venezuela SA [2008] EWHC 532 (Comm)�� 346 Motorola Credit Corp v Uzan (No. 6) [2003] EWCA Civ. 752�� 346 Ngcobo v Thor Chemicals Holdings Ltd and Others (January 1996, Unreported)��314 Nicholas Fuller's Case, 77 Eng Rep 1322 (KB 1607)�� 140 Okpabi and Others v Royal Dutch Shell plc and Another [2017] EWHC 89�� 313, 315, 319, 323 Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) [2018] EWCA Civ. 191 ��313, 322 Prohibitions del Roy, 77 Eng Rep 1342 (KB 1607) �� 140 R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58 ��361 R v Bernard (1858), 1 F&F 240 ��219 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty International Intervening) (No. 3) [2000] 1 AC 147; (1999) 2 All ER 97 �� 156, 217, 236, 293, 295, 296 R v Keyn (The Franconia) (1876) LR 2 Ex D 63��219, 473 R v Officer Commanding Depot Battalion, RASC, Colchester, ex parte Elliott [1949] 1 All ER 373�� 368 R v Serva (1845), 1 Den 104, 169 ER 169��219 Serdar Mohammed v Ministry of Defence [2017] UKSC 2 �� 371 Shindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ. 469��336 Sinclair v HM Advocate (1890) 17 R(J) 38�� 368 Spiliada, The [1987] AC 460�� 340 Spiliada Maritime Corp. v Cansulex Ltd [1986] UKHL 10�� 315

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xx table of cases Susannah Scott, Ex parte (1829) 9 B&C 446 : 109 ER 106�� 368 United States Securities and Exchange Commission v Manterfield [2009] EWCA Civ. 27�� 344 Vedanta Resources plc and Another v Lungowe and Others [2019] UKSC 20��313, 318, 325, 328, 340 Vishva Ajay, The [1989] 2 Lloyd’s Rep. 558 �� 340 VTB Capital plc v Nutritek International Corp. [2013] 2 AC 337 ��319 YL v Birmingham City Council [2008] 1 AC 95 ��111

United States Alabama Great Southern Railroad v Carroll, 11 So 803 (1892)�� 135 Alexander Murray, Esq. v the Schooner Charming Betsy, 6 US 64 (1804); (1804) 6 US (2 Cranch), 64 ��333, 402 Appollon, The, 22 US 362 (1824)�� 333 Babcock v Jackson, 191 NE 2d 279 (NY 1963)�� 135 Coleman’s Appeal, 75 Pa 441 (1874)�� 132 Demjanjuk v Petrovsky (1985) 603 F Supp. 1468; affirmed 776 F 2d 571�� 296 F. Hoffmann-LaRoche Ltd v Empagran SA, 542 US 155�� 215, 216, 310, 311 Filártiga v Peña-Irala, 630 F 2d 876 (2d Cir. 1980)�� 220 Ga High Sch Ass’n v Waddell, 285 SE 2d 7 (Ga 1981)��148 International Shoe Co. v Washington 326 US 310 (1945) ��134 Jesner v Arab Bank, 584 US (2018)�� 312 Kadic v Karadzic, 70 F 3d 232 (2d Cir.1995) �� 220 Ker v Illinois, 119 US 436 (1888)�� 368 Kiobel v Royal Dutch Petroleum Co., 133 S. Ct 1659 (2013) �� 215, 216, 217, 220, 221, 312, 338, 342 Medellín v Texas, 552 US 491, 128 S. Ct 1346 (2008) �� 247 Microsoft v United States, No. 14-1985 (2d Cir. 2016) Judgment, 16–19�� 388 Morrison v National Australian Bank Ltd, 561 US 247 (2010)��211, 213, 215, 308, 310, 311, 333, 403, 404 Pasquantino v United States, 544 US 349�� 213 Pennoyer v Neff, 95 US 714 (1877)�� 131, 132, 134 People v Moua, No. 315972 (Cal. Super. Ct 1985)��126 PGA Tour, Inc. v Martin, 532 US 661 (2001)��148 Piper Aircraft Co. v Reyno, 454 US 235 (1981) �� 315 Princz v Federal Republic of Germany, 26 F 3d 1166 (D.C. Cir. 1994)��241 Riley v California (2014) 134 S. Ct 2473�� 386 RJR Nabisco, Inc. v European Community, 136 S. Ct 2090 (2016) ��404 The Schooner Exchange v McFaddon, 11 US 116 (1812)�� 230 Ultramares Corp. v Touche (1931) 174 NE 441 ��326 Union Carbide Corp. Gas Plant Disaster, In re, 809 F 2d 195 (2d Cir. 1987) ��316 United Phosphorus, Ltd v Angus Chemical Co., 322 F 3d 942 (7th Cir. 2003) �� 4 United States v Ali, 885 F Supp. 2d 17 (2012)��359 United States v Alvarez-Machain, 504 US 655 (1992) ��368, 369, 377 United States v Microsoft Corp., 584 US (2018)�� 335 United States v Microsoft Corp., Case No. 17–2 (2018)�� 17, 383, 389, 402, 404 United States v Toscanino, 500 F 2d 267 (15 May, 1974) �� 370 Wiwa v Royal Dutch Petroleum Co., 226 F 3d 88 (2d Cir. 2000)�� 312

Yugoslavia Miroslav Vuckovic and Bozur Bisevac, January 2001 (District Court of Mitrovica)�� 539 Momcilo Trajkovic, 6 March 2001 (District Court of Gjila)��539

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Table of Legislation

International Instruments African Charter on Human and Peoples’ Rights 1981 ��362 American Convention on Human Rights 1969 Art 9��362 Budapest Convention 2001 Art 1(c)��388 Art 1(d) ��388 Art 2��394 Art 4��394 Art 14��387 Art 15�� 390, 392, 394 Art 15(1)�� 390 Art 18��397, 398, 399, 401, 408 Art 18(1)��397, 398, 402 Art 18(1)(a) ��397, 398, 408 Art 18(1)(b)��397, 398, 408 Art 18(3)��397, 408 Art 19�� 390, 398, 399 Art 19(1)(a) �� 390 Art 19(1)(b)�� 390 Art 19(2)��390, 392, 393 Art 19(3)�� 390 Art 22�� 391 Art 32�� 391, 392, 397, 398, 408 Charter of the Organization of American States 1948 (OAS Charter) ��370 Charter of the United Nations 1945�� 20, 367, 368, 369, 370, 384 Chapter VI ��484, 486 Chapter VII�� 468, 484, 485, 486, 501, 518, 522, 523, 524, 533 Art 2(1)�� 5, 468 Art 2(4)�� 375 Art 2(7) ��309, 467, 468, 484, 485, 486, 493 Art 7(1)�� 468 Art 22�� 519 Art 24��482, 484, 486, 493 Art 25�� 496, 520 Art 27(2) ��485

Art 28(2)��483, 487 Art 29�� 482 Art 30�� 482 Art 34�� 484, 486, 494 Art 39�� 484, 493, 495, 519 Art 41��495, 496, 519 Art 42�� 519 Art 48�� 496 Art 92�� 468 Art 94(1) �� 247 Art 99�� 488 Art 103�� 361 Art 105�� 542 Chicago Convention on International Civil Aviation 1944 Art 17�� 287 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988 Art 4�� 289 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984��15, 156, 236, 289, 293, 295, 298, 343, 362, 416, 535, 549 Preamble �� 290 Art 1�� 294 Art 5�� 290, 291, 292, 294 Art 6��292 Art 7��292 Art 8��291 Art 12��291 Art 14(1)��342 Convention Concerning Forced or Compulsory Labour 1930 (ILO Convention No. 29) Art 25�� 255 Convention Concerning the Exchange of Greek and Turkish Populations (Lausanne Convention of 30 January 1923) Art 2�� 464 Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW)�� 106, 109, 535, 549

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xxii table of legislation Convention on the Elimination of All Forms of Racial Discrimination 1965 �� 535 Convention on Jurisdictional Immunities of States and their Property 2004��250 Art 12�� 235 Art 19��237 Art 30(1) �� 230 Convention on the Law of the Sea 1982 Preamble��272 Art 27��473 Art 28��473 Art 33��457 Art 56��457 Art 58(2) ��274 Art 91�� 288 Art 99��272 Art 100��272 Art 101��272 Art 102��272 Art 105�� 273, 274, 365 Art 107��274 Art 108(1)��272 Art 109��274 Art 109(1)��272 Art 110��274 Art 110(1)(a) ��274 Art 110(1)(b)–(e)��274 Art 110(2)��274 Art 111��274 Art 117 ��272 Art 139��272 Art 143(3)��272 Art 144(2) ��272 Art 151(1)(a)��272 Art 153(4)��272 Art 218��211 Convention on Privileges and Immunities 1946 s 2��542 s 18 ��542 s 19��542 s 20�� 544 s 22��542 s 23�� 544 Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention)�� 15, 211, 261, 280, 298, 505 Art I�� 262, 263, 265, 266 Art III��261, 262 Art IV��262 Art V �� 262, 264, 265 Art VI��261–7, 269, 272, 512 Art VII��262, 265

Art VIII��262, 265 Art IX��265 Art XII��263, 265 Art XIII��267 Art XIV��265 Art XV��265 Convention on the Rights of Persons with Disabilities 2006��416 Convention on the Rights of the Child 1989�� 416, 535, 549 Convention on the Settlement of Investment Disputes between States and Nationals of Other States 1965�� 458 Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 1988 Art 6��282 Art 10��282 Convention respecting Conditions of Residence and Business and Jurisdiction 1923 (Convention of Lausanne) �� 475 Art 15�� 50, 470, 471, 472 Art 16��471 Covenant of the League of Nations 1919 Article 15�� 462 Article 15(8)�� 461, 462, 463, 464 European Convention for the Peaceful Settlement of Disputes 1957 Art 1��234 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 2004��547 European Convention on Human Rights 1950 ��341, 372, 378, 390, 395, 414, 416, 420, 422, 424, 425, 468, 544, 549 Art 1��357, 417, 419, 421, 547 Art 5�� 371 Art 5(1)�� 371, 377 Art 5(1)(c)��376 Art 6(1) ��232 Art 7��362 European Convention on State Immunity 1972�� 230 Art 31�� 235 Geneva Conventions 1949�� 157, 211, 263, 277, 278, 279, 283, 284, 285, 286, 297, 298 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949�� 274

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table of legislation xxiii Chapter IX��275 Art 47��277 Art 49��274, 275, 276, 279, 285, 286 Art 50�� 276 Art 63�� 284 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949��274 Chapter VIII��275 Art 48��277 Art 50��274, 276, 279, 285, 286 Art 51��275, 277 Art 62�� 284 Geneva Convention (III) Relative to the Treatment of Prisoners of War 1949��274 Part VI��275 Art 127��277 Art 129��274, 276, 279, 285, 286 Art 130��275, 276 Art 142�� 284 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 1949��274 Part IV��275 Art 144��277 Art 146��274, 276, 279, 285, 286 Art 147��275, 276 Art 158�� 284 Geneva Convention on the Amelioration of the Condition of the Wounded and Sick 1929 Art 29(1)��275 Geneva Convention on the High Seas 1958 Art 19��274 Geneva Convention on the Territorial Sea and Contiguous Zone Art 19(1)�� 288 Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970��291, 298 Art 1��281 Art 2��280, 281 Art 4��280, 281, 282 Art 4(1) ��282, 287 Art 4(2)��282 Art 7��280, 281, 283 Art 8��282 International Convention against the Taking of Hostages 1979 Art 5(1)(d)��358 Art 8(1)��278

International Convention for the Suppression of Acts of Nuclear Terrorism 2005 Art 9(2)(a)��358 International Convention for the Suppression of Counterfeiting Currency 1929 Art 3�� 255 Art 8�� 255 International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications 1923 Art 1�� 264 Art 2�� 264 Art 2(1)�� 264 International Convention on the Suppression and Punishment of the Crimes of Apartheid 1973 Art II ��278 Art IV(a)��278 Art V ��278 International Convention on the Suppression of Terrorist Bombings 1997��363 Art 6(2)(a)��358 International Covenant on Civil and Political Rights 1966 (ICCPR)�� 390, 395, 415–6, 535, 549 Art 2.1�� 422 Art 9(1) ��367 Art 14�� 336, 519 Art 15��362 International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) �� 414, 416, 444, 452, 453, 535 League of Nations Convention for the Prevention and Punishment of Terrorism 1937�� 298 Art 1�� 264 Art 2�� 264 League of Nations Convention to Suppress the Slave Trade and Slavery 1926�� 298 Art 3�� 255 Art 6�� 255 Montevideo Convention on the Rights and Duties of States 1933 Art 8�� 309 Art 9��259 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation 1971 Art 1�� 289 Art 5�� 289 Art 5(2) ��282

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xxiv table of legislation Art 7��280, 289 Art 8��282 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography 2000 Art 4��416 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts 1977 (Protocol I) ��283 Art 85(1)��275 Regulations Respecting the Laws and Customs of War on Land 1899 and 1907 (Hague Regulations) Art 42��419 Art 43��534 Rome Statute of the International Criminal Court 1998��250, 523, 541 Preamble��297 Recital 4��524 Art 4(1) ��511 Art 12��530 Art 12(1)��524 Art 12(2)��526 Art 12(2)(a)�� 525, 526 Art 12(2)(b)�� 525 Art 13(a)��524 Art 13(b)��524, 530 Art 17�� 158, 526 Art 17(1)��530 Art 19(1)�� 514 Art 19(1)(a) �� 506 Art 26�� 240 Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property 1999 Art 16(2)(a)��283 Statute of the International Court of Justice 1945 Chapter II��458 Art 36��458 Art 36(2) ��465, 466 Art 38(1)�� 49 Art 38(1)(d)�� 242 Art 59��55 Statute of the International Criminal Tribunal for the Former Yugoslavia 1993 Arts 2 to 5 �� 537 Art 8�� 537 Art 9��538 Statute of the Permanent Court of International Justice 1920

Art 38�� 49 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft 1963 �� 254, 280, 289 Art 3�� 288 Art 3(1)��287 Art 3(2) ��287 Art 4�� 288 Art 16(1)��287 Treaty Between the USA and Ireland on Mutual Legal Assistance in Criminal Matters 2001 ��385 Treaty of Lausanne 1923 Art 28�� 469 Treaty of Tordesillas 1494 ��190 Treaty of Versailles 1919��460 Treaty on International Penal Law 1889�� 253 Art 1��257 Art 3��257 Art 6��257 Treaty to Establish Uniform Rules for Private International Law 1878�� 253 Vienna Convention on the Law of Treaties 1969 Art 27�� 467 Art 34�� 509 Art 53��240, 244, 245

European Union Treaties Charter of Fundamental Rights 2000��341 Art 8��388

Regulations Regulation (EC) No. 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations [2007] OJ L 199/40 (Rome II) Art. 4(2)��347 Art 15�� 352 Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations [2008] OJ L 177/6 (Rome I) Art 19��350 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments

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table of legislation xxv in civil and commercial matters [2012] OJ 351/1 (Brussels I Recast)�� 317 Recital 23�� 353 Recital 24�� 353 Art 7(5) ��350 Art 24�� 353 Art 26��350 Art 33�� 353 Art 34�� 353 Art 45(1)(b)�� 340 Art 63�� 349 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L 119/1(General Data Protection Regulation) Art 48��406

Directives Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L 281/31 (Data Protection Directive)�� 388 Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2009] OJ L 8/3 ��210

National Legislation Belgium Act of Concerning the Punishment of Grave Breaches of International Humanitarian Law 1993/1999 Art 7�� 478 Code of Criminal Procedure Art 46(a)(2)��401 Art 88��392

France Code of Criminal Procedure 1975 Art 689��291

Germany Federal Compensation Law 1953 �� 233 Federal Law establishing a ‘Remembrance, Responsibility and Future Foundation’ 2000�� 233

Greece Civil Procedure Code s 923��234

Indonesia Law on Anti-Subversion��536 Law on Defence and Security��536 Law on Mobilization and Demobilization��536 Law on National Protection and Defence��536 Law on National Security ��536 Law on Social Organizations ��536 Penal Code ��535, 541 Art 2��536 Art 3��536 Art 4��536 Art 5(1)��536

Israel Law for the Prevention and Prevention and Punishment of Genocide, Law 5710-1950�� 267–9 Nazi and Nazi Collaborators (Punishment) Law 1950�� 267–9 s 5�� 269

Italy Constitution Art 10�� 247 Art 80�� 247 Art 87�� 247 Law on Accession by the Italian Republic to the United Nations Convention on Jurisdictional Immunities of States and their Property, signed in New York on 2 December 2004, as well as provisions for the amendment of the domestic legal order (Law 5/2013)�� 247 Law on ratification of the UN Charter (Law 848/1957)�� 247

Kosovo Criminal Code �� 534, 552

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xxvi table of legislation Netherlands Civil Code�� 78 Code of Civil Procedure Art 9��342

South Africa Marriage Act 1961��115 Recognition of Customary Marriages Act 1998��115

Spain Historical Memory Law (Ley de Memoria Histórica or Ley por la que se reconocen y amplían derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la Guerra Civil), Law 52/2007 of 16 December��225 Requirement of 1513 (Requerimiento) �� 60

Timor-Leste Decree Law No. 19/2009 to Approve the Penal Code, 30 March 2009 �� 535 Penal Code �� 535

Turkey Criminal Code Art 4��258 Art 6�� 257, 258, 470, 474

United Kingdom Arbitration Act 1996��101, 105 Civil Procedure Rules 1998 (SI 1998/3132) (L. 17) r 3.1(3) �� 321, 324 r 3.1(6) ��345 Practice Direction 6B �� 321, 324, 344 Criminal Justice Act 1988 s 134 �� 293, 296 Human Rights Act 1998��341 s 6(3)(b)�� 111 Investigatory Powers Act 2016��388 Offences Against the Person Act 1861

s 9�� 333 State Immunity Act 1978�� 232, 341 Terrorism Act 2000 s 63A�� 349 s 63B�� 349 s 63C�� 349

United States Alien Tort Claims Act 1789��312, 338 Clarifying Lawful Overseas Use of Data Act 2018 (CLOUD)��17, 335, 407, 409 § 103(a)(1) ��406 Constitution 1783�� 134 4th Amendment�� 403 Electronic Communications Privacy Act 1986�� 403 Title II �� 402 Foreign Sovereign Immunities Act 1976��232 Foreign Trade Antitrust Improvements Act 1982��310 Genocide Convention Implementation Act 1987�� 294 Justice against Sponsors of Terrorism Act 2016 § 2040 �� 246 Omnibus Diplomatic and Antiterrorism Act 1986 Chapter 113A��291 Securities Exchange Act 1934��310 Sherman Antitrust Act 1890��310 Stored Communications Act 1986��335, 388–9, 403, 408, 409 § 2701��405, 406 § 2702�� 405 § 2703�� 402, 404, 406 Torture Convention Implementation Act 1994�� 294 Torture Prevention Act 1991 § 1350��343

Yugoslavia Criminal Code 1977�� 535 Arts 141–151��539

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List of Contributors

Stephen Allen is a Senior Lecturer in Law at Queen Mary, University of London and a barrister with a door tenancy at 5 Essex Court Chambers, London. His publications include The Chagos Islanders and International Law (Hart, 2014) and Title to Territory in International Law: A Temporal Analysis (Ashgate, 2003, with Joshua Castellino). He has jointly edited several books including Fifty Years of the British Indian Ocean Territory: Legal Perspectives (Springer, 2018); Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart, 2011); and The Rights of Indigenous Peoples in Marine Areas (Hart, forthcoming). Stéphane Beaulac is a full professor (professeur titulaire) at the University of Montreal, Canada; in 2017–2018, he was a Flaherty visiting professor at the University College Cork, Ireland. He teaches public international law, human rights law, and comparative constitutional law. His current research includes the law of independence (selfdetermination, secession) and the national use of international law. He has published some twenty law books and over a hundred scientific papers and articles. His work has won prizes and has been cited by the International Court of Justice. Paul Schiff Berman is Walter S. Cox Professor of Law at The George Washington University Law School. His research focuses on the effect of globalization on the interactions among legal systems. He is the author of over sixty scholarly works, including Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge University Press, 2012). He is also co-author of a leading casebook on internet law and policy. Daniel Costelloe is a counsel in the International Arbitration group at Wilmer Cutler Pickering Hale and Dorr LLP in London, where his practice focuses on international disputes and public international law. His academic research explores, among other areas, the law of treaties, state succession, international responsibility, and the history of international law. He is the author of Legal Consequences of Peremptory Norms in International Law (Cambridge University Press, 2017). Malgosia Fitzmaurice is Professor of Public International Law at Queen Mary, University of London and specializes in international environmental law, the law of treaties, indigenous peoples, and Arctic law, and has published widely on these subjects. She is particularly interested in jurisdictional issues with respect to international environmental law. Her latest publications include the IMLI Manual on International Maritime Law, I: The Law of the Sea (Oxford University Press, 2014; co-edited with

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xxviii list of contributors David Attard and Norman Martinez); ‘Uniformity versus Specialisation (1): The Quest for a Uniform Law of Inter-State Treaties’, in Christian Tams, Antonios Tzanakopoulos, and Andreas Zimmermann (eds.), Research Handbook on the Law of Treaties (Edward Elgar, 2014; co-authored with Panos Merkouris); and the Research Handbook on International Environmental Law (Edward Elgar, 2012; co-edited with David Ong and Panos Merkouris). Paul Gragl is Reader in Public International Law and Theory at Queen Mary, University of London. Besides jurisdiction and state immunity in international law, his research interests include general international law, EU law, and legal theory and philosophy. He is the author of two monographs, The Accession of the European Union to the European Convention on Human Rights (Hart, 2013) and Legal Monism: Law, Philosophy, and Politics (Oxford University Press, 2018). Edward Guntrip is a Lecturer in Law at the University of Sussex. His research considers how public international law governs economic activities undertaken in foreign jurisdictions and in areas beyond state jurisdiction. Edward has written blogs for EJIL Talk! and has published on these topics in various journals, including the International and Comparative Law Quarterly. Georg Kerschischnig currently serves at the Department of Political and Peacebuilding Affairs of the United Nations as Political Affairs Officer in the Security Council Affairs Division. He has mainly published on cyber-threats in the context of public international law but has also researched and published on trade and telecommunications law as well as on human security and the rule of law. Uta Kohl is Professor of Commercial Law at Southampton Law School, University of Southampton. Her research interests are internet governance, including jurisdiction in public and private international law, and corporate governance with particular focus on the regulation of multinational companies. She is the author of Jurisdiction and the Internet (Cambridge University Press, 2007); Information Technology Law, 5th edn (Routledge, 2016; co-authored with Diane Rowland and Andrew Charlesworth); and editor of The Net and the Nation State (Cambridge University Press, 2017). Dino Kritsiotis is Professor of Public International Law at the University of Nottingham, where he chairs the Programme in International Humanitarian Law (Nottingham International Law & Security Centre). His interests lie in the law of armed conflict and the use of force, as well as the history and theory of public international law. Most recently, with his Nottingham colleague Michael J. Bowman, he co-edited Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge University Press, 2018). Shaun McVeigh is an Associate Professor at Melbourne Law School University of Melbourne. He researches in the field of jurisprudence and jurisography. Along with Shaunnagh Dorsett he is the author of Jurisdiction (Routledge, 2012). His current research addresses the conduct of the office of jurisprudent.

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list of contributors xxix Alex Mills is Professor of Public and Private International Law in the Faculty of Laws, University College London. His research encompasses a range of issues across public and private international law, including international investment law and commercial arbitration. His publications include The Confluence of Public and Private International Law (Cambridge University Press, 2009), Party Autonomy in Private International Law (Cambridge University Press, 2018), and (co-authored) Cheshire North and Fawcett’s Private International Law (Oxford University Press, 2017). Blanca Montejo is currently Senior Political Affairs Officer at the Security Council Affairs Division of the UN Department of Political and Peacebuilding Affairs. In this role, she provides advice on all aspects of the Security Council practice and procedure and coordinates the preparation of the Repertoire of the Practice of the Security Council. Whilst her current interest focuses on the Security Council, she has published on questions relating to international dispute resolution and the international responsibility of international organizations. Helen Quane is a Professor of Law at the Hillary Rodham Clinton School of Law, Swansea University. Her research interests relate to issues of a normative and structural nature in international human rights law. Recent publications address the relationship between legal pluralism and international human rights law as well as the protection of human rights within ASEAN states. Cedric Ryngaert is Chair of Public International Law at Utrecht University. Among other publications, he authored Jurisdiction in International Law, 2nd edn (Oxford University Press, 2015) and Unilateral Jurisdiction and Global Values (Eleven, 2015), and co-edited with Math Noortmann and August Reinisch, Non-State Actors in International Law (Hart, 2015), Non-State Actor Responsibilities (Brill, 2015), and The International Prosecutor (Oxford University Press, 2012). For his work on jurisdiction, he received the Prix Henri Rolin (2012). Kirsten Schmalenbach is Professor of International and European Law at the Paris Lodron University of Salzburg in Austria. Previously, she was Professor at the University of Graz (Austria) and Bayreuth (Germany). Her research covers, inter alia, the law of international organizations, international criminal law, and international liability law; she is editor of the Commentary Vienna Convention on the Law of Treaties, 2nd edn (Springer, 2018, with Oliver Dörr). James Summers lectures in international law at Lancaster University. He is the author of Peoples and International Law, 2nd edn (Nijhoff, 2014) and edited Kosovo: A Precedent (Nijhoff, 2011), Contemporary Challenges to the Laws of War (Cambridge University Press, 2014, with Nigel White and Caroline Harvey/Kittelmann), and Non-State Actors and International Obligations (Nijhoff, 2018, with Alex Gough). Kimberley N. Trapp is an Associate Professor of Public International Law at University College London, Faculty of Laws. Kimberley has published in leading academic journals and edited collections on issues relating to the jus ad bellum, state responsibility,

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xxx list of contributors the interaction between international humanitarian law and terrorism suppression, and the settlement of international disputes. Kaius Tuori is Professor of European Intellectual History at the University of Helsinki, Finland. A scholar of legal history involved in research projects on the understanding of tradition, culture, identity, memory, and the uses of the past, he is the author of The Emperor of Law: The Emergence of Roman Imperial Adjudication (Oxford University Press, 2016) and Lawyers and Savages: Ancient History and Legal Realism in the Making of Legal Anthropology (Routledge, 2014). Mariana Valverde is a Professor at the Centre for Criminology & Sociolegal Studies at the University of Toronto. Her fields of study are the legal regulation of sexuality, sociolegal theory, historical sociology, and urban governance and law. Her books include: Sex, Power, and Pleasure (Women’s Press, 1985); The Age of Light, Soap, and Water: Moral Reform in English Canada 1880s–1920s (University of Toronto Press, 1991); Diseases of the Will: Alcohol and the Dilemmas of Freedom (Cambridge University Press, 1998); Law’s Dream of a Common Knowledge (Princeton University Press, 2003); Law and Order: Signs, Meanings, Myths (Routledge, 2006); Everyday Law on the Street: City Governance in an Age of Diversity (University of Chicago Press, 2012); Chronotopes of Law: Jurisdiction, Scale, and Governance (Routledge, 2015); and Michel Foucault (Routledge, 2017). Wouter Vandenhole holds the Chair in Human Rights at the Faculty of Law of the University of Antwerp. He is the Director of an intensive training programme on sustainable development and global justice offered by the Law and Development Research Group. His research interests include children’s rights; economic, social, and cultural rights; and the relationship between human rights law and development. His current work focuses on the human rights obligations of foreign states and companies, and the conceptual implications of sustainable development for human rights law. Stephan Wittich is a Professor of Public International Law at the Department of European, Comparative and International Law at the University of Vienna and an Adjunct Professor at the Vienna School of International Studies. His research interests include international procedural law, treaty law, immunities and privileges, and international responsibility. He is a co-editor of the annual Austrian Review of International and European Law (Brill), International Law between Universalism and Fragmentation (Nijhoff, 2008, with Isabelle Buffard, James Crawford and Alain Pellet) as well as International Investment Law for the 21st Century (Oxford University Press, 2009, with Christina Binder, Ursula Kriebaum, and August Reinisch); he is the author of The Reparation of Non-Material Damage in International Law (Nijhoff, forthcoming). Nurfadzilah Yahaya is an Assistant Professor of History at the National University of Singapore. She specializes in legal history, colonialism, Islamic law, and the Indian Ocean. Her forthcoming book, Fluid Jurisdictions in the Indian Ocean: Arab Diaspora under Colonial Rule (Cornell University Press) explores how Muslims navigated colonial legal courts in the nineteenth and twentieth centuries.

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Pa rt I

I N T RODUC T ION

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Chapter 1

I n troduction Defining State Jurisdiction and Jurisdiction in International Law Stephen Allen, Daniel Costelloe, Malgosia Fitzmaurice, Paul Gragl, and Edward Guntrip

I. Jurisdiction: First Overtures to an Elusive Concept

4

II. Jurisdiction: Why Does It Matter in International Law?

5

III. Jurisdiction in International Law: An Overview of this Book

9

III.1. III.2. III.3. III.4.

History of Jurisdiction Theory of Jurisdiction Jurisdiction in General International Law Contextualizing Jurisdiction: Selected Substantial and Institutional Issues

IV. The Objective of this Handbook

9 11 14 17

21

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4 Allen, Costelloe, Fitzmaurice, Gragl, and Guntrip

I. Jurisdiction: First Overtures to an Elusive Concept For every lawyer, regardless of whether he or she is working in domestic or international law, ‘jurisdiction’ is a constant companion. In most cases, one seems to know intuitively what it means—for example, where a film shows a crime scene and the arriving officer (often from the United States Federal Bureau of Investigation) tells the local sheriff: ‘You can stop your investigations now. This case is within my jurisdiction.’ Without going into the details of US law and assessing whether such scenes are legally accurate, jurisdiction therefore appears to be closely connected to legal power or competence.1 This means that jurisdiction as a legal concept is normative, not empirical, and it primarily concerns the competence to control and alter the legal relations of those subject to that competence through the creation and application of legal norms.2 The concept of jurisdiction is so far unproblematic, and in the absence of further questions lawyers seem to know what it means. Yet if pressed, one struggles to provide a comprehensive definition,3 because ‘[j]urisdiction is a word of many, too many, meanings’.4 The reason for this general lack of agreement lies in the extreme compartmentalization of the law of jurisdiction which, in turn, stems from the nature of jurisdiction, as Cedric Ryngaert notes on the first page of his monograph Jurisdiction in International Law.5 It remains an abstract concept that is in constant need of application and e laboration in particular areas of substantive and procedural law. Therefore, seeing that a full grasp of the underlying substantive regulations is invariably required (for instance, antitrust law, data protection law, emissions trading schemes), the substantive law specialists rather than generalist (international) lawyers have ventured into jurisdiction.6 In the area of antitrust jurisdiction, for instance, the sheer amount of litigation has favoured ‘the development of principles and techniques the application of which seems to be the object of a somewhat autonomous scientific debate’.7 However, given this obvious casuistic approach to jurisdiction, it is the general principle or a general theory of 1 Patrick Capps, Malcolm Evans, and Stratos Konstadinidis, ‘Introduction’, in Patrick Capps, Malcolm Evans, and Stratos Konstadinidis (eds.), Asserting Jurisdiction: International and European Legal Perspectives (Oxford: Hart Publishing, 2003), xix. 2 Ibid., xix fn 1, and xix–xx; Wesley Hohfeld, ‘Some Fundamental Legal Conceptions as Applies in Judicial Reasoning’, Yale Law Journal 23 (1913–14): 16, 49. See also Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002), 132–8 and 149–59. 3 Which presents an interesting analogy to St Augustine’s dictum on the nature of time in St Augustine, Confessions, trans. Henry Chadwick (Oxford: Oxford University Press, 2008), 230 (book XI, chapter XIV): ‘What then is time? Provided that no one asks me, I know. If I want to explain it to an inquirer, I do not know.’ 4 United Phosphorus, Ltd v Angus Chemical Co., 322 F 3d 942, 948 (7th Cir. 2003). 5 Cedric Ryngaert, Jurisdiction in International Law, 2nd edn (Oxford: Oxford University Press, 2015), 1. 6 Ibid., 1–2. 7 Andrea Bianchi, ‘Extraterritoriality and Export Controls: Some Remarks on the Alleged Antinomy between European and U.S. Approaches’, German Yearbook of International Law 35 (1992): 366, 374 fn. 32.

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Introduction 5 jurisdiction that is required in order to gain a meaningful insight into what ‘jurisdiction’ really is.8 The first general and probably intuitive definition given here (i.e. that jurisdiction is legal power) is plausible because this is the original etymological meaning of the word, derived from the Latin ‘to speak the law’ (ius dicere) and the magistrate’s power ‘to determine the law and, in accordance with it, to settle disputes concerning persons and property within his forum (sphere of authority)’.9 The central perspective will, of course, be ‘jurisdiction in international law’, as the title of this book suggests.10 The minimum consensus is that jurisdiction is an element of state sovereignty (or territoriality)11— although sceptics might then point out that this definition simply shifts the problem to another level, namely to the similarly enigmatic concept of ‘sovereignty’ or to the notion of ‘territoriality’. Yet, if we can accept state sovereignty as an axiomatic postulate, then domestic laws extend only so far as the sovereignty of the state. These laws, ordinarily, do not apply to persons, events, or conduct outside the limits of a given state’s sovereignty.12 This principle results from the sovereign equality of states,13 from which it follows that in a world of such equally sovereign states every state has the right to shape its sovereignty by adopting laws within its sovereign boundaries.14 Readers might have noticed that this definition remains hopelessly circular, but it becomes more meaningful once one adds that this principle also bars states from encroaching upon the sovereignty of other states.15 Prima facie, international jurisdiction is, consequently, more or less congruent with a state’s territory and its nationals. This static view of the territoriality principle is generally unproblematic, as determining a state’s jurisdiction is merely an exercise in demarcating its geographical borders and producing the relevant documents to prove an individual’s nationality.

II. Jurisdiction: Why Does It Matter in International Law? This congruence of sovereignty and territory, however, ends once the relationship between the two becomes dynamic and nationals of a given state move across borders. Thus, jurisdiction becomes an issue in international law once a state adopts laws that 8 F. A. Mann, ‘The Doctrine of International Jurisdiction Revisited after Twenty Years’, Recueil des cours 186 (1984–III): 13, 19. 9 Joseph Plescia, ‘Conflict of Laws in the Roman Empire’, Labeo 38 (1992): 30, 32. 10 See B. J. George, ‘Extraterritorial Application of Penal Legislation’, Michigan Law Review 64 (1966): 609, 621. 11 Mann (n. 8), 20. 12 Ibid. 13 See e.g. Art. 2(1) of the UN Charter. 14 See Hessel E. Yntema, ‘The Comity Doctrine’, Michigan Law Review 65 (1966): 9, 19; Joseph H. Beale, ‘The Jurisdiction of a Sovereign State’, Harvard Law Review 36 (1923): 241. 15 Mann (n. 8), 20.

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6 Allen, Costelloe, Fitzmaurice, Gragl, and Guntrip govern matters which are not purely of domestic concern.16 In this case, the extension of jurisdiction to regulate the activities of a state’s nationals abroad under the so-called active personality principle draws on the conception of a state as more than just territory, namely as a group of persons, wherever located, who are subject to a common authority that accompanies nationality.17 This kind of jurisdiction is often exercised in the field of international family law18 and, more prominently, in criminal law, in particular to prevent nationals from engaging in criminal activity upon return to their state of nationality and from enjoying impunity. This type of jurisdiction is also exercised to protect a state’s reputation from being tarnished by the conduct of its nationals abroad.19 Especially in the latter case, the active personality principle can be regarded as compensation for the diplomatic protection offered by the state of nationality.20 Lastly, as states often refuse to extradite their nationals for crimes committed abroad, the active personality principle becomes a corollary of the need to avoid impunity on the part of offenders, while the locus delicti state might even welcome this exercise of jurisdiction by the perpetrator’s state of nationality, as it relieves the former of the task of prosecuting the offender.21 The question of nationality is determined by domestic law, although international law may ascertain whether such a claim of nationality by one state must be accepted by another on the basis of the ‘genuine link’ test.22 However, Article 4 of the 2006 ILC Draft Articles on Diplomatic Protection,23 rejecting this ‘genuine link’ test, seems to be more appropriate and practically applicable in this respect, as—in our age of mass migration—this test would exclude millions of persons. States usually limit their active personality jurisdiction to the most serious crimes, but this limitation does not seem to be required by international law.24 In contrast, it is controversial whether the nationality of the victim of a crime also constitutes a sufficient jurisdictional link under international law.25 Therefore, the passive personality principle is typically not accepted, because it would amount to an encroachment upon the sovereignty of other states and thus be viewed ‘as an excess of jurisdiction’.26 The orthodox starting point for international lawyers in assessing questions of jurisdictional limits remains the Lotus case,27 which clarified—in paraphrased 16 Ryngaert (n. 5), 5; F. A. Mann, ‘The Doctrine of Jurisdiction in International Law’, Recueil des cours 111 (1964–I): 1, 9. 17 Henri Donnedieu de Vabres, Les Principes modernes du droit pénal international (Paris: Sirey, 1928), 77. 18 Ibid., 80. 19 Ryngaert (n. 5), 106. 20 See Donnedieu de Vabres (n. 17), 63; Frédéric Desportes and Francis Le Gunehec, Le Nouveau Droit Pénal, 7th edn (Paris: Economica, 2000), 328; Geoffey R. Watson, ‘Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction’, Yale Journal of International Law 17 (1992): 41, 68. 21 Watson (n. 20), 69–70; Ryngaert (n. 5), 106–7. 22 See Nottebohm Case (Liechtenstein v Guatemala) Second Phase [1955] ICJ Rep. 4. 23 ILC Draft Articles on Diplomatic Protection with Commentaries, Yearbook of the International Law Commission 2006, vol. II, part two, para. 5. 24 Harvard Research on International Law, ‘Draft Convention on Jurisdiction with Respect to Crime’, American Journal of International Law 29 (1935): 439, 531. 25 Mann (n. 16), 39; Harvard Research on International Law (n. 24), 579. 26 Mann (n. 16), 92. See also Ryngaert (n. 5), 110–13. 27 SS Lotus (France v Turkey) [1927] PCIJ Series A, No. 10, 19.

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Introduction 7 words—that ‘whatever is not explicitly prohibited by international law is permitted’.28 The judgment remains decisive,29 notwithstanding the criticism it has attracted over the years.30 It summarizes the underlying rules of international law concerning state jurisdiction: first, jurisdiction is permissive, since, within its territory, a state may freely exercise its jurisdiction subject only to certain rules of international law;31 and, second, jurisdiction is prohibitive, because outside of its territory a state may exercise its jurisdiction unless international law prohibits it from doing so.32 This finding simply reflects what has already been said earlier in the context of the sovereign equality of states. However, the situation becomes more complex when talking about extraterritorial jurisdiction beyond the context of the two personality principles discussed above (e.g. where a state purports to apply its jurisdiction in situations that do not have a genuine connection to that state).33 Therefore, jurisdiction remains an area of international law that continues to be underdeveloped. Alex Mills has pointed out that the problem of scrutinizing jurisdiction in international law has not received extensive scholarly attention, and the attention it has attracted can be coalesced into a fairly ritualized account of the standard ‘heads’ of jurisdiction, based on territoriality and nationality.34 This Oxford Handbook of Jurisdiction in International Law is intended to be an authoritative guide to the rapidly developing domain of state jurisdiction and jurisdiction in general in international law. The book seeks to provide a comprehensive analysis of historical, contemporary and emerging issues in the area of state jurisdiction and jurisdiction in general as a manifestation of state sovereignty and other forms of authority, which is tantamount to a state’s inherent powers to affect the rights of persons, whether by legislation, by executive decree, or through the judgment of a court in its own territory.35 Thus, the book examines what jurisdiction in international law means, and it analyses how this concept is used by international courts as well as tribunals and international organizations. The principal aim of this Handbook is, therefore, to shed light on this legal concept, which is particularly prone to conflicts and overlaps, and on the increasing exercise of extraterritorial jurisdiction. Further, the legal position became considerably more nuanced after the Permanent Court of International Justice (PCIJ) rendered judgment in the Lotus case.36 Consequently, the book will take up the task not only of explaining the historical sources of international jurisdiction, but also of scrutinizing recent developments and the legal status quo in a wide-ranging but concise inquiry. These recent developments in particular make it necessary to reconsider both the orthodox understanding of state jurisdiction as an element of territorial sovereignty and the role 28 An Hertogen, ‘Letting Lotus Bloom’, European Journal of International Law 26 (2016): 901, 902. 29 See e.g. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep. 403, Declaration of Judge Simma, paras. 3 and 8–9. 30 See e.g. Hersch Lauterpacht, The Function of the Law in the International Community (Cambridge: Cambridge University Press, 2011), 102–4; and Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84 (2014): 187, 192–4. 31 Lotus case (n. 27), paras. 46–7. 32 Ibid., para. 45. 33 See e.g. Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994), 74. 34 Mills (n. 30), 188. 35 Beale (n. 14), 241. 36 Lotus case (n. 27), 19.

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8 Allen, Costelloe, Fitzmaurice, Gragl, and Guntrip of international law in resolving problems of authority in international relations. The need to respond to global phenomena (e.g. transnational environmental threats,37 cyber-activity,38 investment and trade practices,39 health epidemics,40 the extraterritorial application of human rights regimes41) means that territorial and exclusive conceptions of jurisdiction are being supplanted by extraterritorial exercises of authority. These phenomena are now occurring to such an extent that extraterritoriality is increasingly viewed as a starting point for the exercise of state jurisdiction, rather than as an exception. This shift has major implications for international law, which has largely functioned on the assumption that states possess exclusive authority within certain spheres and that it merely performs the modest task of maintaining this exclusive, predominantly territorial, framework by resolving coordination problems.42 It is becoming apparent from an array of international instruments and institutional initiatives being adopted across a number of areas—from the decisions of international and national judicial bodies and from the work of scholars in a range of fields and disciplines—that not only are traditional approaches to state jurisdiction increasingly unable to cope with contemporary global conditions, but also that manifestations of extraterritorial jurisdiction escape strict categorization because of their great variations in degree.43 It is well-known that these developments also threaten the primacy of the state as the principal actor in the international legal order. The claims of normative authority, which accompany the exercise of jurisdiction, have also exercised legal theorists working in the area of transnational legal pluralism44—and those interested in the sociology of law more generally45—in their work on non-state forms of law. Against that background, this book focuses on the ways in which international law responds to the jurisdictional challenges which currently confront it. While there have been important publications on specific aspects of jurisdiction in international law, attention must also be drawn to the general absence of scholarly works that have sought to offer a comprehensive analysis of this concept at a general level. Accordingly, the aim of this book is to examine the topic of jurisdiction in a holistic manner and to examine 37 See e.g. An Hertogen, ‘Sovereignty as Decisional Independence over Domestic Affairs: The Dispute over Aviation in the EU Emissions Trading System’, Transnational Environmental Law 1 (2012): 281–301. 38 See e.g. Derek J. Illar, ‘Unraveling International Jurisdictional Issues on the World Wide Web’, University of Detroit Mercy Law Review 88 (2010): 1–16. 39 See e.g. Stephan W. Schill, The Multilateralization of International Investment Law (Cambridge: Cambridge University Press, 2014), 173 et seq. 40 See e.g. Allyn L. Taylor, ‘Global Governance, International Health Law and WHO: Looking towards the Future’, Bulletin of the World Health Organization 12 (2002): 975, 977–8. 41 See e.g. Hugh King, ‘The Extraterritorial Human Rights Obligations of States’, Human Rights Law Review 9 (2009): 521–56; Marko Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford: Oxford University Press, 2011). 42 Hans Kelsen, Principles of International Law (New York: Rinehart & Company, 1959), 202. 43 Harold G. Maier, ‘Jurisdictional Rules in Customary International Law’, in Karl M. Meessen (ed.), Extraterritorial Jurisdiction in Theory and Practice (The Hague: Kluwer Law, 1996), 78. 44 Paul Schiff Berman, Global Legal Pluralism (Cambridge: Cambridge University Press, 2012), 195–243. 45 Justin B. Richland, ‘Jurisdiction: Grounding Law in Language’, Annual Review of Anthropology 42 (2013): 209–26.

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Introduction 9 the intersection and interaction between various aspects of jurisdiction (e.g. public international law/private international law, general/special regimes, theory/practice) with a view to providing fresh insight into the practical and theoretical function and content of the doctrine of jurisdiction in contemporary international law. At the same time, this book follows a decidedly critical approach: instead of blindly applauding state sovereignty and jurisdiction as ends in themselves, the steady erosion of which through the growing obsolescence of territorially bound political authority (e.g. through international human rights; supranational organizations, such as the EU; or economic globalization)46 is to be deplored,47 it sheds light not only on the current legal status of jurisdiction in international law, but also considers its history, its potential future, and its underlying theoretical framework in order to render this difficult concept more accessible. It introduces into the purview of scholarship on international jurisdiction new perspectives and angles of analysis which explore how this specific field of law has developed and how it is applied in both international and domestic courts. In this context, this book certainly takes into account the past and present law of jurisdiction, but it does not merely rehearse this field: rather, it is directed towards investigating the steady transformation of one of the most basic principles of international law from exclusivity to flexibility. In the end, this Handbook shows that the rules and principles of jurisdiction in international law must be reimagined, simply because the traditional framework of public international law which is only concerned with state rights has changed. Today, jurisdiction on the international plane must rather be thought of as a combination of state rights and obligations in relation to individual rights, which reflects the more complex reality of contemporary international law.48

III. Jurisdiction in International Law: An Overview of this Book III.1. History of Jurisdiction As illustrated in this book, jurisdiction in modern international law is closely connected with the territoriality principle, which represents the basis of jurisdiction most often invoked in international law. This, however, has not always been the case. In order to 46 Alfred van Staden and Hans Vollaard, ‘The Erosion of State Sovereignty: Towards a Post-Territorial World?’, in Gerard Kreijen et al. (eds.), State, Sovereignty, and International Governance (Oxford: Oxford University Press, 2002), 67. 47 See especially for the case of the United Kingdom and the European Convention on Human Rights: Samantha Besson, ‘The Reception Process in Ireland and the United Kingdom’, in Helen Keller and Alec Stone Sweet (eds.), A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford: Oxford University Press, 2008), 49–52. 48 Mills (n. 30), 235.

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10 Allen, Costelloe, Fitzmaurice, Gragl, and Guntrip understand how the principle of jurisdiction developed, Part II of this Handbook thoroughly investigates the historical roots of jurisdiction in international law. This account will demonstrate that territoriality constitutes a rather novel basis for exercising jurisdiction, which did not become prominent until the ascendance of sovereign nation states after 1648,49 and even then, could not be universally applied. In his chapter ‘The Beginnings of State Jurisdiction in International Law until 1648’, Kaius Tuori examines the evolution of sovereignty, universal jurisdiction and state authority prior to the existence of the Westphalian international legal order. Tuori challenges the notion that jurisdiction prior to the introduction of modern-day states was solely based on the personality principle. Rather, he argues that the foundations of modern jurisdiction are present in Roman and medieval jurisdictional practices. By developing three case studies to support his argument, Tuori provides a more nuanced understanding of how Roman law was reinterpreted to form the foundations of modern international law. Therefore, this chapter presents an alternative historical perspective based on a fresh reading of historical practices. A historical account of jurisdiction in international law also necessarily covers the inception of the modern notion of jurisdiction, which is best exemplified by the abovementioned judgment of the PCIJ in the Lotus case and its main proposition that the principle of jurisdiction entitles states to do whatever is not prohibited by international law.50 Stéphane Beaulac addresses the significance of the Lotus case from a jurisdictional perspective in ‘The Lotus Case in Context: Sovereignty, Westphalia, Vattel, and Positivism’. Beaulac situates the Lotus case in its historical context by considering the influence of the Westphalian legal order and Vattel’s understanding of state sovereignty on the Court’s judgment. He argues that the influence of both of these frameworks supports the positivistic stance taken by the PCIJ in this decision, which remains present in the more recent jurisprudence of the International Court of Justice (ICJ). By examining the legacy of the Lotus case, Beaulac’s chapter draws our attention to the theoretical assumptions that underpin state sovereignty and jurisdiction in international law. In ‘The European Concept of Jurisdiction in the Colonies’, Nurfadzilah Yahaya critiques the operation of jurisdiction when applied outside of its European origins. Yahaya examines the application of a territorially focused approach to jurisdiction in the colonial context, where territorial control was incomplete and subject to competing assertions of authority by colonial subjects. Thus, this chapter examines the pluralism that resulted from colonial powers imposing new administrative structures on colonial subjects. Based on an examination of different colonial settings, Yahaya argues that jurisdiction remained plural, contested, and reliant on factors such as relations amongst people, property regimes and similar cultural practices, rather than control over territory. This chapter highlights the significance of territorial jurisdiction as a tool to further the expansion of colonial rule and how the use of jurisdiction in this manner resulted in the subjugation of pre-existing legal frameworks.

49 As a result of the Westphalian Peace of 1648.

50 Lotus case (n. 27), 19.

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Introduction 11 In the last chapter of Part II, Stephan Wittich discusses ‘Immanuel Kant and Jurisdiction in International Law’, which is a difficult undertaking, as Kant nowhere in his works specifically dealt with questions of jurisdiction. But Kant’s work does nonetheless contain several thoughts and ideas on the scope of regulatory state activities that may well be read as pertaining to the exercise of imperium in the sense of jurisdiction as it is commonly used today. In his philosophical sketch Toward Perpetual Peace, Kant proceeded from a traditional understanding of jurisdiction as coexistence between states as a cornerstone of international law. In this traditional view, jurisdiction is nothing more than a reasonable mutual delimitation of jurisdictional spheres based on territoriality or personality. Yet, at the same time, he also developed a visionary idea of cosmopolitan law which would significantly affect the traditional rules of jurisdiction, especially the personality principle through the emergence of individual rights. Kant’s approach thus foreshadowed a development towards an anthropocentric international legal order epitomized by the concepts of human rights and universal jurisdiction.

III.2. Theory of Jurisdiction The concept of jurisdiction does not exist in a theoretical vacuum, but is, in fact, grounded in a plethora of underlying notions, be they—to name a just few—constitutional, pluralistic, sociological, or critical in nature. From a political and international relations perspective, the rules of jurisdiction in international law are designed to enable the state to maintain its sovereign powers. States would, from one point of view, never agree to the rules of international law if these rules encroached on their powers and interests. Conversely, however, it is also in any given state’s interests to accept limitations on national power in order to avoid descending into global anarchy.51 It is, therefore, of utmost importance to examine, theoretically, how the modern constitutional state accepts, and denies, foreign jurisdictional claims, and how it engages with jurisdictional questions in an international setting. A prominent example involving theoretical questions of jurisdiction and the constitutional state, for instance, can be found in the dispute between the German Constitutional Court and the Court of Justice of the European Union (CJEU) on the question who has the last say (i.e. jurisdiction) on competence and sovereignty within the EU and its relation with the Member States.52 Theories of jurisdictional conflicts between the CJEU and the Member States are closely related to pluralist theories, which hold that a multitude of legal orders coexist at

51 Alexander Orakhelashvili, ‘International Law, International Politics and Ideology’, in Alexander Orakhelashvili (ed.), Research Handbook on the Theory and History of International Law (Cheltenham: Edward Elgar, 2011), 361. 52 Miriam Aziz, ‘Sovereignty Über Alles: (Re)Configuring the German Legal Order’, in Neil Walker (ed.), Sovereignty in Transition (Oxford: Hart Publishing, 2006), 290–3.

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12 Allen, Costelloe, Fitzmaurice, Gragl, and Guntrip the national and international levels in the same time–space context,53 and that the global legal system constitutes an interlocking web of jurisdictional assertions by state, international, and non-state normative communities. And as each type of overlapping jurisdictional assertion (state versus state; state versus international body; state versus non-state entity) potentially creates a hybrid legal space that is not easily eliminated,54 a clear-cut and hierarchically informed theory of jurisdiction becomes impossible to conceive. Against this background, it is expected that the account of a pluralist theory of jurisdiction in international law discussed in this volume will help to fill this gap and offer a different view of the conflicts that currently pervade the exercise of jurisdiction in international law. In Part III, jurisdiction will also be examined from a socio-legal perspective (i.e. on the basis of a ‘systematic, theoretically grounded, empirical study of law as a set of social practices or as an aspect or field of social experience’55). Essentially, international jurisdiction is about the exercise of power, and—as Max Huber rightly observed—power without law leads to tyranny, whilst law without power tends to descend into anarchy. We must, therefore, take into account that the predominant players on the international stage still have an important role as the power-substrate of international law.56 A sociological theory of international jurisdiction can not only enrich our understanding of the social factors involved in the creation and implementation of international rules on jurisdiction, but can also yield valuable insights regarding better legal mechanisms for coping with modern jurisdictional challenges and disputes. Of equal significance, sociological methods may further our understanding of the social limits inherent in the concept of international jurisdiction in the contemporary international system.57 In a similar way, this Handbook will also explore the explanatory strength of Critical Legal Studies in analysing jurisdiction in international law. In the deconstructive light of this theory, jurisdiction merely plays a regulatory role, particularly in structuring international relations by defining the boundaries of various authorities already in existence. This specific contribution will, therefore, question whether the attempt to make jurisdiction in international law depend upon the ‘real’ configurations of power in fact perpetuates the assertion of sovereign will in its present form58 and protects it from being challenged on normative grounds.59 53 William Twining, ‘Normative and Legal Pluralism: A Global Perspective’, Duke Journal of Comparative and International Law 20 (2010): 473, 476 fn. 4. 54 Paul Schiff Berman, ‘Global Legal Pluralism’, Southern California Law Review 80 (2007): 1155, 1159. 55 Roger Cotterrell, ‘Sociology of Law’, in David S. Clark (ed.), Encyclopedia of Law and Society: American and Global Perspectives, 3 vols. (Los Angeles: Sage Publications, 2007), III, 1413. 56 Jost Delbrück, ‘Max Huber’s Sociological Approach to International Law Revisited’, European Journal of International Law 18 (2007): 97, 111. 57 Moshe Hirsch, ‘The Sociology of International Law: Invitation to Study International Rules in their Social Context’, University of Toronto Law Journal 55 (2005): 891, 891–2. 58 David Kennedy, International Legal Structures (Baden-Baden: Nomos, 1987), 117 and 125–6. 59 Anthony Carty, ‘Critical International Law: Recent Trends in the Theory of International Law’, European Journal of International Law 2 (1991): 66, 76–7.

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Introduction 13 In her chapter, ‘Navigating Diffuse Jurisdictions: An Intra-State Perspective’, Helen Quane analyses the jurisdictional boundaries between state and non-state law with specific reference to religious, or customary, law. In particular, she contends that the determination of these regulatory forms as state law depends on the extent to which they perform prescriptive, adjudicative or enforcement functions, an assessment which is, in turn, driven by contextual considerations. Quane, therefore, argues that the boundaries between state and non-state law are not as stable as they may appear, as they are liable to shift according to circumstances and over time. As Quane rightly points out, the issue of classification acquires resonance in cases where legal pluralism occurs as the character and the scope of a state’s exercise of jurisdiction becomes far more ambiguous in such situations. In ‘Jurisdictional Pluralism’, Paul Schiff Berman berates the formalist notion of jurisdiction for its failure to recognize the extent to which the exercise of jurisdiction must be accommodated by numerous multiple and overlapping norm-generating communities and to recognize the vagaries of political and sociological reality, as they manifest themselves in specific situations. Accordingly, he argues that we need to adopt an approach that is far more sensitive to the contribution that such communities make to our understanding of jurisdiction (and to the phenomenon’s contested nature). To this end, in his chapter, Berman offers an elaborate theoretical framework for the reconceptualization of jurisdiction, one which recognizes the extent to which contemporary social conditions, which are increasingly experienced across different jurisdictions, and changes in regulatory authority (i.e. governance), are visibly supplanting the exclusive notion of jurisdiction favoured by classical international law, with its preoccupation with sovereignty and territory. In ‘Deepening the Conversation between Sociolegal Theory and Legal Scholarship about Jurisdiction’, Mariana Valverde considers the relationship between social theory and law but, as a social theorist, she does not attempt to sketch out a non-legal theoretical model for the purpose of applying it in the legal domain. Instead, she shows the insights that can be gained from a much more interactive approach. In particular, Valverde pays close attention to the theoretical implications of specific legal technicalities by borrowing methodologies originating from non-legal disciplines for this purpose. In this context, she reveals how substantial benefits may be derived from this genuine exercise in interdisciplinarity by harnessing considerations of scale, temporality, materiality, and narrative affect, as far as jurisdiction is concerned. In his essay, ‘Critical Approaches to Jurisdiction and International Law’, Shaun McVeigh draws upon jurisdiction’s etymological origins which, as noted earlier, refer to the power, or authority, to ‘speak the law’. Relying on this aspect of jurisdiction, he observes that international law is often treated, by scholars, as a critical discipline or project in its own right. McVeigh harnesses this specific aspect of jurisdiction in order to analyse the ways in which critical jurists have grappled with the character and transmission of forms of authority in a variety of settings. For this broad and multifaceted purpose, McVeigh interprets jurisdiction as a concept which determines the conduct of lawful

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14 Allen, Costelloe, Fitzmaurice, Gragl, and Guntrip relations, and, in this respect, he adopts a standpoint which differs significantly from the one embraced by doctrinal scholars. For McVeigh, this conception of jurisdiction comes to the fore in situations where different peoples, nations, and legal regimes come into contact with one another. In this regard, McVeigh is particularly interested in the impact that such encounters have on invested scholars and the critical projects at stake. In adopting this analytical approach, he demonstrates the diversity which pervades the scholarship concerning jurisdiction while illuminating our understanding of the different and competing conceptions of authority that underpin the work of leading scholars in the field of international law and legal theory.

III.3. Jurisdiction in General International Law Besides the historical and theoretical basics of jurisdiction, this Handbook also looks into the more doctrinal notions of jurisdiction in general international law. Part IV therefore primarily deals with the current legal challenges and issues of jurisdiction in the interplay between states, international organizations, and the instruments of public international law. Not only does general international law increasingly face conflicts and changing patterns in defining the limits of the personality versus the territoriality principle (e.g. when a state is attempting to regulate matters extraterritorially),60 but it is also confronted with the so-called ‘effects principle’, which seeks to expand the jurisdictional rights of states in order to cover the effects of an act committed in one state taking place in another state. Yet it fails to provide an effective framework for protecting the interests of states that might be affected by this expansion of jurisdiction.61 Similar problems are caused by the notion of universal jurisdiction, which does not operate on the basis of a connecting factor linking up with a state’s interests, but which is solely based on the ‘international’ nature of the criminal act committed.62 To this end, Cedric Ryngaert assesses in his contribution the current ‘Cosmopolitan Jurisdiction and the National Interest’ and first engages with the very raison d’ȇtre of the law of jurisdiction, which has, historically, been legally to delimit spheres of state power on the basis of the principle of territoriality, so as to prevent international conflict from arising. In a world characterized by increasing interdependence and multiple identities, territoriality is losing its power as a principle of jurisdictional order. Harmful activities (e.g. cybercrime, international corruption, emitting greenhouse gases) often have territorial connections—strong or weak—with multiple states. This raises the question of which territorial sovereign has prescriptive jurisdiction in a given situation. Moreover, a territory-based law of jurisdiction that limits itself to keeping states at arm’s length from each other may fail to address the major problems of our time. It may fail to recognize 60 D. W. Bowett, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’, British Yearbook of International Law 53 (1983): 1, 8. 61 David J. Gerber, ‘Beyond Balancing: International Law Restraints on the Reach of National Laws’, Yale Journal of International Law 10 (1985): 185, 185. 62 Ryngaert (n. 5), 101.

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Introduction 15 that states have adopted common substantive norms and have set shared goals, for the realization of which the international community may, crucially, depend on unilateral state action. The need to take international action in the face of unjustified multilateral blockage is obviously in tension with the time-honoured principle of territorial sovereignty. The chapter argues that, from a global governance perspective, continued reliance on territoriality no longer serves a purpose, and suggests (global) interest-based jurisdiction as a useful alternative, at least where the harmful activity cannot readily be located in one particular state. Another doctrinal aspect is covered by Paul Gragl in his chapter on ‘Jurisdictional Immunities of the State in International Law’. The 2012 judgment by the ICJ in the Jurisdictional Immunities case63 has reinvigorated the debate surrounding the question whether states enjoy immunity before the courts of other states in questions of grave human rights violations and violations of international humanitarian law. Jurisdictional immunity is not absolute anymore, and it is now accepted that private law acts of states can be subjected to adjudication before foreign national courts, whereas public law acts cannot. This raises the question of whether the plea for immunity still is a purely procedural principle or whether it is now also shaped by questions of substantive law. And even though it seems that the Court’s negative answer appears to have foreclosed any development of the customary law of state immunity in this area for the foreseeable future, this chapter investigates what this means for the interaction between international and national law. In this regard, the reaction of the Italian Corte Costituzionale in 2014, effectively disregarding the ICJ’s decision, is remarkable. The question remains whether new paradigms and new customary international law can be established on the basis of national judicial decisions and what this means for the relationship between international law and domestic law. The chapter by Dino Kritsiotis, ‘The Establishment, Change, and Expansion of Jurisdiction through Treaties’, considers the insufficiency of the so-called traditional principles of jurisdiction—territoriality, nationality, protection, universality, and passive personality—when set against jurisdictional provisions of treaties (e.g. the Genocide Convention) and, indeed, in customary international law. These jurisdictional principles seek to explain the exercise of sovereign power, but, especially with treaty provisions, we now see a much more refined set of propositions—often an obligatory kind—in action. Therefore, this chapter enquires into the extent to which these provisions, read against those of custom (e.g. take the Genocide Convention and the Eichmann trial, on the one hand, and the Anti-Torture Convention and the Pinochet case, on the other), help us understand what these jurisdictional principles try to achieve, and what new modalities can help achieve a better understanding of them. Uta Kohl—in her chapter ‘Territoriality and Globalization’—challenges the commonly held view that the territorial state is fundamentally unsuited to, and incompatible with, twenty-first-century manifestations of globalization in the form of ever-tightening economic integration or all-pervasive global communication networks. This is only partly 63 Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) [2012] ICJ Rep. 99.

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16 Allen, Costelloe, Fitzmaurice, Gragl, and Guntrip true. The state—as defined and enabled by public international law around the idea of territorial sovereignty—provides the ideal mechanism for global capital and corporate activity to function and grow with maximum efficiency and minimal accountability. The territorial nation state provides the legal framework that facilitates foreign wealth accumulation through open borders, and its subsequent retention in the Global North through closed borders. At the core of this legal framework are the territorial rules under private and public international law that provide high flexibility in, selectively, opening and closing borders as and when national interest demands. The chapter argues that the complementary concepts of territory and borders are useful constructs to ringfence capital from ‘leakages’ to the outside. The argument is illustrated with reference to US cases applying the presumption against extraterritoriality, on the one hand, and by English corporate cross-border tort litigation, on the other hand. In these cases, the territorial state emerges not as a victim of globalization but as an essential participant, propagator, and beneficiary. Alex Mills then focuses on ‘Private Interests and Private Law Regulation in Public International Law Jurisdiction’ and discusses how questions of private law are, generally, marginalized in favour of a focus on public law, particularly criminal law. This is surprising and unfortunate for two main reasons. The first is that private law issues played a central role in the development of public international law jurisdictional principles. The second is that public international lawyers have, in a range of other contexts, increasingly recognized the significance of private law regulation, and the ‘public’ function which it can play in pursuing particular state interests. Recognizing the significance of private law jurisdiction presents, however, some important challenges to the way in which public international law jurisdiction has become to be understood. In the field of private law, private interests (such as rights of access to justice or exercises of party autonomy) are widely recognized as playing a role in legitimizing state regulatory interventions, in addition to traditional connections of territoriality and nationality or residence. If public international law jurisdiction faces these challenges, the outcome will be a richer and more accurate understanding of the way in which international law regulates the allocation of regulatory authority between international actors. Kimberley Trapp’s chapter on ‘Jurisdiction and State Responsibility’ adopts a somewhat classical structure in its discussion of state responsibility and jurisdiction by discussing prescriptive, adjudicative, and enforcement jurisdiction in turn. The substantive discussion is, however, anything but classical, and engages with state responsibility issues in respect of a state’s exercise of jurisdiction through the prism of several themes, including shifting approaches to sovereignty (from exclusively a source of rights to a source of obligation and responsibility) and the increasing pluralism of the international community. The starting point of this chapter is that Lotus has been turned on its head—the forces of globalization, resulting in the ever-increasing interdependence of states and peoples, have a counterpoint in the law of jurisdiction, requiring states to exercise their prescriptive jurisdiction more narrowly than Lotus suggests. While these constraints on jurisdiction mirror, to a certain extent, a bygone principle of non-intervention, they are not driven by principles of exclusivity and conceptions of

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Introduction 17 sovereignty as a shield, but rather by concerns to rationalize the exercise of jurisdiction so as to minimize excessive overlap and conflict. Finally, Stephen Allen examines in his chapter ‘Enforcing Criminal Jurisdiction in the Clouds and International Law’s Enduring Commitment to Territoriality’, a very topical issue—how cross-border data storage by way of Cloud Computing and related criminal activities have become a major problem for criminal justice authorities. Since these authorities remain beholden to the territoriality principle and cannot search, unilaterally, for data located within another state’s territory, the dramatic growth in trans-border criminality means that this territorial limitation now risks undermining the extent to which individual states are able to satisfy their positive obligation to maintain the integrity of their criminal justice systems and to uphold the rule of law more generally. Therefore, this chapter seeks to draw attention to the consequences, for states and the inter-state system, of certain choices which are currently being mooted at the global level. To this end, in addition to considering the proposals developed by the Cybercrime Committee, this chapter pays particular attention to two significant cases— the Belgian Supreme Court’s 2015 decision in the Yahoo! case;64 and the Microsoft Warrant case, which was the subject of an appeal to the US Supreme Court.65

III.4. Contextualizing Jurisdiction: Selected Substantial and Institutional Issues In contrast to the earlier chapters, Part V covers discrete substantive areas in relation to the concept of jurisdiction in international law and analyses distinct institutional settings in which jurisdiction plays a central role. With regard to the first subject matter, the editors are fully aware that substantial jurisdictional issues relate to areas as topical and diverse as cyberspace (in relation to issues such as data protection, cyber-attacks, and espionage);66 the law of the sea, particularly in relation to maritime delimitation,67 the exploitation of maritime resources,68 and the combatting of piracy;69 the question of 64 The Yahoo! Judgment, Belgian Court of Cassation, 1 December 2015, Case No. P13.2082.N/1. 65 United States v Microsoft Corp., Case No. 17–12 (2018) (the ‘Microsoft Warrant case’). The Supreme Court proceedings were halted due to Congress’s intervention via the Clarifying Lawful Overseas Use of Data (CLOUD) Act, which was enacted on 23 March 2018. See the Supreme Court’s judgment, 17 April 2018: https://www.supremecourt.gov/docket/docketfiles/html/public/17-212.html. However, this legislation does not affect the resonance of this case for the wider purposes of international law. 66 See e.g. Scott J. Shackelford, Managing Cyber Attacks in International Law, Business, and Relations: In Search of Cyber Peace (Cambridge: Cambridge University Press, 2014). 67 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) [2001] ICJ Rep. 40, para. 169. 68 Louis Rey, ‘Resource Development in the Arctic Regions: Environmental and Legal Issues’, in Dorinda G. Dallmayer and Louis DeVorsey Jr (eds.), Rights to Oceanic Resources (Dordrecht: Martinus Nijhoff, 1989), 167 et seq. 69 Eugene Kontorovich, ‘“A Guantánamo on the Sea”: The Difficult of Prosecuting Pirates and Terrorists’, California Law Review 98 (2010): 243, 244.

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18 Allen, Costelloe, Fitzmaurice, Gragl, and Guntrip res communes, which encompass areas as diverse as outer space,70 aviation,71 and protecting cultural heritage;72 human rights, ranging from issues of transnational human rights law73 to refugee law,74 terrorism,75 and the notion of ‘R2P’;76 environmental and health law, including questions of jurisdiction with regard to climate change,77 sustainable development, and global health;78 and international trade, investment, and finance— areas that often raise conflicts with human rights law.79 Yet, given this extensive range of substantive areas, it is impossible for this Handbook comprehensively to cover and critically examine all of them without becoming too voluminous. Part V is therefore deliberately concise, and it contextualizes jurisdiction in international law on the basis of two selected issues, namely human rights and investment law. These areas have not been chosen arbitrarily. On the contrary, the editors believe that these two areas of law currently raise particularly interesting and urgent questions in relation to jurisdiction in an international setting. The decision not to include, in this Handbook, chapters on a wider variety substantive and institutional issues should not be attributed to the space constraints alone. As one of the insightful—anonymous— scholars who reviewed the proposal for the book commented, a volume with a large number of chapters looking at specific aspects of jurisdiction may result in a compendious Handbook that fails to capture the holistic nature and shape of the concept of jurisdiction. This is one of the principal aims of this book, and so we have chosen to wield Occam’s razor somewhat brutally in our endeavour to engage with the protean notion of jurisdiction in a meaningful and reflective manner. The chapter by Wouter Vandenhole, ‘The “J” Word: Driver or Spoiler of Change in Human Rights Law?’, examines the controversial extraterritorial jurisdiction of human 70 Gbenga Oduntan, Sovereignty and Jurisdiction in Airspace and Outer Space: Legal Criteria for Spatial Delimitation (London: Routledge, 2011), esp. 174 et seq. 71 See e.g. the controversies of the EU Emission Trade Scheme; Case C-366/10, Air Transport Association of America and Others [2011] ECR I-13755. 72 Roger O’Keefe, ‘Protection of Cultural Property under International Criminal Law’, Melbourne Journal of International Law 11 (2010): 1–54. 73 Sigrun Skogly and Mark Gibney, ‘Transnational Human Rights Obligations’, Human Rights Quarterly 24 (2002): 781–98. 74 Andreas Fischer-Lescano, Tillmann Löhr, and Timo Tohidipur, ‘Border Controls at Sea: Requirements under International Human Rights and Refugee Law’, International Journal of Refugee Law 21 (2009): 256–96. 75 Colin Warbrick, ‘The European Response to Terrorism in an Age of Human Rights’, European Journal of International Law 15 (2004): 989, 1015. 76 Krista Nakavukaren Schefer and Thomas Cottier, ‘Responsibility to Protect (R2P) and the Emerging Principle of Common Concern’, in Peter Hilpold (ed.), The Responsibility to Protect (R2P): A New Paradigm of International Law? (Leiden: Brill, 2015), 124–5. 77 James Bushnell, Carla Peterman, and Catherine Wolfram, ‘Local Solutions to Global Problems: Climate Change Policies and Regulatory Jurisdiction’, Review of Environmental Economics and Policy 2 (2008): 175–93. 78 Stefania Negri, ‘Sustainable Development and Global Health’, in Malgosia Fitzmaurice, Sandrine Maljean-Dubois, and Stefania Negri (eds.), Environmental Protection and Sustainable Development from Rio to Rio+20 (Dordrecht: Martinus Nijhoff, 2014), 264–88. 79 Steven R. Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’, Yale Law Journal 111 (2002): 443, 506–7.

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Introduction 19 rights courts. The author argues that human rights law should accept extraterritorial obligations. That argument relies on two submissions. First, reality indicates that states frequently engage in extraterritorial conduct, or take measures with extraterritorial effects, which can have a negative impact on human rights outside of these states’ borders. Second, human rights law must be able to reflect reality (i.e. it must be able to engage with extraterritorial conduct or effects). The notion of ‘jurisdiction’ has been at the centre of debates on extraterritorial human rights obligations. In human rights law, jurisdiction is not about the legality to act, but rather about the question whether an obligation to observe human rights applies towards certain individuals. Therefore, it defines the scope of a treaty’s application ratione personae. The question, thus, becomes: to which rights-holders does a state party have obligations? It may be said that jurisdiction has rather been a spoiler of change than a game-changer in the case law of the European Court of Human Rights (ECtHR). Extraterritorial jurisdiction mainly finds support in the case law of other human rights bodies, such as the UN Human Rights Committee and the American Commission on Human Rights. However, there are many challenges in the way of a wider recognition of extraterritorial jurisdiction in the area of human rights. The chapter by Edward Guntrip, ‘International Investment Law, Hybrid Authority, and Jurisdiction’, examines the extent to which contemporary approaches to jurisdiction can be applied to hybrid exercises of state and non-state authority in international investment law. The author relies on theories of relative authority and transnational law and demonstrates that jurisdiction needs to be reformulated to capture exercises of hybrid authority in international law (i.e. in the public, private, and the international and domestic legal spheres). International investment law is a leading example of where activities can be classified as hybrid authority. Guntrip’s hypothesis is based on the premise that actors within international investment law need to address jurisdiction’s shortcomings if jurisdiction is to capture exercises of hybrid authority in international investment law. If jurisdiction cannot address hybrid authority, it will continue to overlook significant exercises of authority within international investment law. The concept of relative authority can legitimize exercises of hybrid authority, which means that jurisdiction fails to capture key exercises of authority within international investment law. In the context of selected institutional issues concerning jurisdiction in international law, the last chapters of this Handbook explore the respective approaches that certain institutional bodies take to jurisdiction. Again, the editors are aware that there is a plethora of international bodies the jurisprudence and decisions on jurisdiction of which deserve careful analysis. These include, among others, the ECtHR, the CJEU, and the WTO Dispute Settlement Body.80 As in Part IV of this Handbook, the editors made the decision to maintain a relatively narrow focus on general international law. The chapters, as a result, explore the approaches of the ICJ, the UN Security Council, the International Criminal Court (ICC) , and international territorial administration regimes to state jurisdiction. 80 Joel Trachtman, ‘Jurisdiction in WTO Dispute Settlement’, in Rufus Yerxa (ed.), Key Issues in WTO Dispute Settlement: The First Ten Years (Cambridge: Cambridge University Press, 2005), 135.

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20 Allen, Costelloe, Fitzmaurice, Gragl, and Guntrip In his chapter ‘Conceptions of State Jurisdiction in the Jurisprudence of the International Court of Justice and the Permanent Court of International Justice’, Daniel Costelloe traces the manner in which the PCIJ and the ICJ have understood and applied notions of state jurisdiction in response to a variety of legal issues in international dispute settlement. These have notably included the so-called ‘reserved domain’ of domestic jurisdiction, which certain states have invoked in an effort to challenge the jurisdiction of an international court or tribunal or the admissibility of claims. They have also included the foundational question, invariably associated with the PCIJ’s judgment in the case concerning the SS Lotus, whether a state must invoke a permissive rule before it may lawfully exercise jurisdiction. Finally, these issues have involved international legal limitations on the exercise of such jurisdiction in the context of state immunity. The PCIJ’s and ICJ’s jurisprudence reflects the various manifestations of state jurisdiction and their relationship to the body of international law. It is, moreover, indicative of a gradual trend towards an increasing regulatory purview of international law. Blanca Montejo and Georg Kerschischnig, in their chapter ‘The Evolving Nature of the Jurisdiction of the Security Council: A Look at Twenty-First-Century Practice’, analyse the original conception of the Security Council’s jurisdiction and contrast it with the way its jurisdiction has developed—and expanded—in practice since the end of the Cold War. The Security Council’s jurisdiction—which is informed primarily by political rather than legal considerations—rests on a limited legal framework consisting of provisions in the UN Charter and of the Council’s own provisional rules of procedure. Nevertheless, the Security Council’s jurisdiction has expanded considerably since the end of the Cold War and has expanded into areas beyond international security. One notable area in which the Council’s competence has increased in this period, the authors explain, is that of sanctions. The authors conclude that these jurisdiction-related developments in the Council’s practice reflect a world in which the lines between national and international jurisdiction are no longer clear or desirable. At the same time, the Council has also increased its interaction with UN Member States and with civil society. Kirsten Schmalenbach’s chapter, ‘International Criminal Jurisdiction Revisited’, traces the theoretical foundations and the genealogy of international criminal jurisdiction in international law. One of the central themes that typically accompanies the establishment of a body with international criminal jurisdiction is the relationship of this body’s jurisdiction to state sovereignty. While it is clear that international criminal jurisdiction cuts into national jurisdiction to a certain extent, the question concerning the proper foundation of international criminal jurisdiction—whether it rests on state consent or a mandate by the international community—remains more nuanced and more debated. Schmalenbach brings the discussion to the world of practice by exploring judicial perspectives on the jurisdiction of international courts and tribunals, from the International Military Tribunals at Nuremberg and Tokyo up to the ICC. Where the Security Council has been involved in establishing a court or tribunal, jurisprudence supports the position that international criminal jurisdiction is exercised on behalf of the international

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Introduction 21 community, she concludes. In the case of the ICC, however, the picture becomes more complex, due to the role of domestic criminal jurisdiction and the difficulty in identifying a single international community. In the final chapter of the Handbook, James Summers discusses ‘Jurisdiction and International Territorial Administration’, which is an exception to the normal state of affairs. Such territorial administration regimes have been created where international organizations or states collectively have had to step in to stabilize, or reconstruct, a particular country or region, and this kind of administration creates a very distinctive and complex environment for jurisdiction. Accordingly, this chapter explores five different aspects of jurisdiction in relation to these administrations. First, it looks at the basis on which these bodies might assert jurisdiction over a territory and its people. Second, it examines how this jurisdiction can be exercised within the domestic legal systems of these territories. Third, it investigates jurisdiction over international crimes, which may be shared between different international bodies. Fourth, it considers the impact of international organizations’ immunities on jurisdiction, including, fifth, their significance for human rights jurisdiction. The focus is, predominantly, on the missions in Kosovo and East Timor (UNMIK and UNTAET) as well-developed examples of international administration.

IV. The Objective of this Handbook In 2010, Vaughan Lowe and Christopher Staker complained about the lack of engagement with the topic of jurisdiction in general treatises on international law.81 Indeed, they went further by saying that: ‘[c]uriously, there is no satisfactory modern monograph on jurisdiction’.82 Apart from Cedric Ryngaert’s acclaimed monograph, Jurisdiction in International Law (which was first published in 2008), it was a fair comment at the time it was made. Nevertheless, as this introduction has shown, the topic of jurisdiction has attracted considerable academic attention in recent years. To this end, a number of significant books on the general theme, or on specific aspects of jurisdiction in international law, have been published in the last few years. Many of them have been written by scholars involved in this Handbook but other such works include: Alexander Orakhelashvili (ed), Research Handbook on Jurisdiction and Immunities in International Law (2015); Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (2011); and Christopher Kuner, Transborder Data Flows and Data Privacy Law (2013), to name but a few. We are confident that this Handbook will make an important contribution to this evolving field of study. However, as the chapter outlines indicate, this Handbook was not developed with a view to offering only a doctrinal 81 Vaughan Lowe and Christopher Stalker, ‘Jurisdiction’, in M. D. Evans (ed.) International Law, 3rd edn (Oxford: Oxford University Press, 2010), 314–39, 315. 82 Ibid., at 338.

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22 Allen, Costelloe, Fitzmaurice, Gragl, and Guntrip account of the topic jurisdiction as a matter of i nternational law. Instead, it was designed with several academic audiences in mind, including those working in the domains of constitutional law, comparative law, legal history, and legal theory. The volume in its entirety, or certain of its chapters, could also be used in the context of specialist courses in particular areas of law, but it is also meant to be accessible to non-lawyers (a number of the Handbook’s chapters have an interdisciplinary nature). We hope that it offers scholars, practitioners, and policymakers a conceptual understanding of the past, present, and future of jurisdiction in international law.

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Pa rt I I

H ISTORY

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Chapter 2

The Begi n n i ngs of State J u r isdiction i n I n ter nationa l L aw u n til 164 8 Kaius Tuori

I. Introduction

26

II. Antoninus Pius and the Limited Sovereignty of the Emperor

28

III. Caracalla and the Territorial Principle

32

IV. Contesting Universalities: Pope and Emperor

35

V. The Influence of Premodern Legal Doctrine in the Formation of State Jurisdiction in International Law

37

VI. Conclusions

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26 Kaius Tuori

I. Introduction The purpose of this chapter is to explore state jurisdiction in international law, a task complicated by the fact that the notions of state and international law were unknown in their modern forms. Using case studies from ancient and medieval practice, the chapter analyses the transformation of concepts such as sovereignty, universal jurisdiction, and state authority. As premodern jurisdictional order was commonly based on the personality principle, issues such as citizenship, legal privilege, and property were fundamental in the formation of understanding of jurisdiction and its limits. Because modern international law was founded on analogies on Roman private law,1 the chapter will delve into the ways that Roman legal doctrine was adapted and utilized in the making of the international legal order.2 The inquiry into the sources for the beginnings of state jurisdiction in international law suffers from conceptual difficulties. In fact, these are the same issues that might prompt accusations of anachronism or presentism:3 the contemporary conceptions of state, jurisdiction, and international law are deeply rooted in the modern international order based on territorial nation states. In the premodern jurisdictional order, the monolithic concept of state as a territorial unit exercising sovereignty was not yet formed and thus the discussions and cases that this inquiry will then analyse revolve around the same topics—sovereignty, jurisdiction, territoriality, and universality—but go about them in ways that appear different, even alien to the contemporary reader. The ancient and medieval legal cultures thus defy our understanding of jurisdiction and exclusivity of the law and demonstrate how law may function beyond the well-defined categories familiar in the nation state order. For example, it is fitting that the term ius gentium, currently used to denote international law, was originally a Roman legal term. While the Roman citizens were subject to ius civile, the civil law or literally the law of the 1 Hersch Lauterpacht, Private Law Sources and Analogies of International Law (London: Green and Co., 1927); Arthur Nussbaum, ‘The Significance of Roman Law in the History of International Law’, University of Pennsylvania Law Review 100 (1952): 678–87. 2 On the use and reuse of ancient tradition in the making of international law, see David J. Bederman, ‘Reception of the Classical Tradition in International Law: Grotius’ De Jure Belli ac Pacis’, Emory International Law Review 10 (1996): 1–50; Kaius Tuori, ‘The Reception of Ancient International Law in the Early Modern Period’, in Bardo Fassbender, Anne Peters, and Simone Peter (eds.), The Oxford Handbook for the History of International Law (Oxford and New York: Oxford University Press, 2012), 1012–33. On international law in antiquity, see David J. Bederman, International Law in Antiquity (Cambridge: Cambridge University Press, 2001); Nadine Grotkamp, Völkerrecht im Prinzipat (BadenBaden: Nomos, 2009). 3 Anachronism in this case means attributing a phenomenon or concept to a period to which it does not belong, while presentism means judging a historical phenomenon according to modern criteria. These are often intertwined, for example in the discussions on the existence of human rights in antiquity.

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The Beginnings of State Jurisdiction 27 citizens, all people regardless of status or origin were subject to ius gentium, the law of all nations. However, the ius gentium was not international law, but Roman law, specifically the rules of Roman law that would apply to all. Moreover, it is Roman private law, not international or even international private law.4 The chapter is divided into three case studies that explore conceptions of sovereignty, territoriality, and jurisdiction. These cases are from the Roman and medieval practice and have been selected because of their crucial significance to the formation of the historical legal doctrine. This chapter makes absolutely no claim to offer a full coverage of the historical developments; even attempting that would be absurd.5 Instead, it analyses cases that were later fundamental in the creation of international legal doctrine. The first case is a reply by Roman emperor Antoninus Pius on the limits of his jurisdiction with regards to the high seas. The second case revolves around the Constitutio Antoniniana, a disputed legal rule that gave citizenship to all inhabitants of the Roman Empire, for the first time invoking the territoriality principle. The third case relates to the principle of universal jurisdiction and the pope’s universal authority and its implications for the development of international jurisdiction. What these cases seek to highlight is that the traditional image given in the literature of the history of the world being divided into a premodern world based on the personality principle and the ‘post-Westphalian’ world dominated by nation states and the territorial principle is misleading.6 Though the issue of jurisdiction is an important one, there has not been much in the way of scientific interest in the matter. The previous scholarly input into the field is from 1935 and holds strictly to the idea that the personality principle of law was universal in the ancient world, and this view has with some modifications continued in contemporary literature.7 What this exposition will attempt is to present a broader investigation of the conceptual issues that underlie the efforts to define the evolution of international jurisdiction. 4 In the Digest of Justinian, Ulpian divides law into three parts, ius naturale, ius gentium, and ius civile. Dig. 1.1.1.4: Ius gentium est, quo gentes humanae utuntur. Quod a naturali recedere facile intellegere licet, quia illud omnibus animalibus, hoc solis hominibus inter se commune sit. ‘The law of nations is that which all human peoples observe.’ All translations from the Digest are from The Digest of Justinian, trans. Alan Watson et al. (Philadelphia: University of Pennsylvania Press, 1998). On the Roman concept of ius gentium, see Max Kaser, Ius gentium (Cologne: Böhlau, 1993). 5 The themes, when applied to the full human history until the year 1648, would need a considerable space for a comprehensive treatment. 6 The author would like to take this opportunity to stress that the word ‘Westphalian’ is proper only when talking of dogs, not state systems. The latter usage (such as ‘post-Westphalian’) is an ahistorical and caddish way of saying ‘territorial nation state’. 7 Shalom Kassan, ‘Extraterritorial Jurisdiction in the Ancient World’, American Journal of International Law 29 (1935): 237–8. This is not to say that recent books like Cedric Ryngaert, Jurisdiction in International Law (Oxford: Oxford University Press, 2008), 44–7 would not have developed these ideas, but rather that their focus has been different.

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28 Kaius Tuori

II. Antoninus Pius and the Limited Sovereignty of the Emperor The issue of jurisdiction and its limits was fairly convoluted in the ancient world. Because many of the rulings made by the Roman jurists were later utilized in the formation of modern international law, it is useful to look at how the limits of jurisdiction were conceptualized and formulated legally. In the ancient world, the primary rule of jurisdiction was the personality principle—in other words, that Roman law, for example, had exclusive jurisdiction over Roman citizens and they could invoke no other law in support. While the legal pluralistic arrangements which necessarily follow from the application of the personality principle defined how the individual could access justice, this did not mean that states in the ancient Greco-Roman world would necessarily consider themselves bound by these limitations. In fact, states would often claim universal jurisdiction, at least in theory. It was typical for the Roman state, like it was typical of the Greek or Hellenistic city states, to consider itself as having universal jurisdiction.8 Thus, the Romans would, if necessary, extend their jurisdiction over the aliens (peregrini) residing in Rome as would the Greek city state not hesitate to sentence an alien. The power of jurisdiction was not primarily over territories or geographic areas, but also over groups and individuals, that is to say people. The rights and duties of these groups varied equally. In Rome, this gradation varied from full citizen rights to groups like Junian Latins who had some of the rights of citizens but lacked others, such as voting rights.9 An individual within the Roman Empire had thus numerous different obligations and rights to different parties. One could be the citizen of a nominally independent city, but still under the Roman rule, the imperium populi Romani. This concept of rule and influence over a set province was sometimes defined through territory (such as a governor’s power over a province), while on other occasions it could be defined through a set of tasks or subject matter.10 However, this power was normally defined over land, as the high seas were considered to be beyond the power of man to control. Even the Roman emperors, whose power was nominally without any limits, would hesitate to claim control over the seas. This was put to words in numerous ways. For example, Emperor Antoninus Pius, who wrote in a rescript in the mid-second century ce that the law of the sea would be the law of the Rhodians, posed this as a self-limitation:

8 Dieter Nörr, Imperium und polis in der hohen Prinzipatszeit (Munich: Beck, 1966). 9 Gai. Inst. 1.22–23, 3.55–73. Julian Latins were freedmen, who did not receive full citizen or property rights. For example, they were unable to make a will and their property would revert to their patron. 10 On the evolution of law in the relationship between power and sovereignty, see Luigi Capogrossi Colognesi, Law and Power in the Making of the Roman Commonwealth (Cambridge: Cambridge University Press, 2014).

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The Beginnings of State Jurisdiction 29 Maecianus ex lege Rhodia. Ἀξίωσις Εὐδαίμονος Νικομηδέως πρὸς Ἀντωνῖνον βασιλέα. Κύριε βασιλεῦ Ἀντωνῖνε, ναυφράγιον ποιήσαντες ἐν τῇ Ἰταλιᾳ διηρπάγημεν ὑπὸ τῶν δημοσίων τῶν τάς Κυκλάδας νήσους οἰκούντων. Ἀντωνῖνος εἶπεν Εὐδαίμονι. ἐγὼ μὲν τοῦ κόσμου κύριος, ὁ δὲ νόμος τῆς θαλάσσης. τῷ νόμῳ τῶν ‘Ροδίων κρινέσθω τῷ ναυτικῷ, ἐν οἶς μήτις τῶν ἡμετέρων αὐτῷ νόμος ἐναντιοῦται. τοῦτο δὲ αὐτὸ καὶ ὁ θειότατος Αὔγουστος ἔκρινεν. [Dig. 14.2.9] Voluvius Maecianus, From the Rhodian Law: Petition of Eudaemon of Nicomedia to the Emperor Antoninus: ‘Antoninus, King and Lord, we were shipwrecked in Icaria and robbed by the people of the Cyclades.’ Antoninus replied to Eudaemon: ‘I am master of the world, but the law of the sea must be judged by the sea law of the Rhodians where our own law does not conflict with it.’ Augustus, now deified, decided likewise.

What Antoninus Pius outlines here is the jurisprudence of a universal empire that rests on legal pluralism. He first asserts his universal authority (‘lord of the whole world’), but then inserts the self-limitation. The customary law of the sea, that is the sea law of Rhodians, may be applied, but only as long as it is not contrary to the rules of Roman law. This is the traditional way of state legal pluralism, where local law may be applicable as long as it does not contravene with the imperial law. Local law is thus subservient to the hegemonic imperial law.11 What is interesting is the complete transformation of the intent of Pius in the later literature. While he sought to limit his own involvement, possibly after being exhorted by petitioners praising him as the lord of the world, the later imperialistic interpretation was completely opposite, that the ruler has, if needed, universal jurisdiction.12 This ruling was in line with the general jurisdiction of the Roman emperor at the time. Imperial jurisdiction was both voluntary and universal, meaning that the emperor could choose whether he heard a case and gave his ruling. There were no set rules that would limit imperial jurisdiction not to assign certain cases exclusively to the emperor, even though some established practices were formed. This meant that the emperor was capable of exercising jurisdiction universally if he so wished.13 There are a number of cases 11 William Twining, ‘Normative and Legal Pluralism: A Global Perspective’, Duke Journal of Comparative and International Law 20 (2010): 473–517. On earlier traditions of pluralism, see M. B. Hooker, Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Oxford: Clarendon Press, 1975). For a more recent assessment, see Leon Sheleff, The Future of Tradition: Customary Law, Common Law and Legal Pluralism (London and Portland, OR: Frank Cass, 2000). On the division between state legal pluralism and others, see Sally Engle Merry, ‘Legal Pluralism’, Law and Society Review 22 (1988): 872–4. On the difficulty of transition between state legal pluralism and deep legal pluralism, see Gardiol van Niekerk, ‘Legal Pluralism’, in J. C. Bekker, C. Rauterbach, and N. M. I. Goolam (eds.), Introduction to Legal Pluralism in South Africa (Durban: LexisNexis Butterworths, 2006), 5–10. 12 In his legal rescripts, Pius was known to use sarcasm and irony. Wynne Williams, ‘Individuality in the Imperial Constitutions’, Journal of Roman Studies 66 (1976): 74–8. This appears to be an instance where sarcasm was just misunderstood. 13 On the emergence of Roman imperial jurisdiction, see Kaius Tuori, Emperor of Law (Oxford and New York: Oxford University Press, 2016); Mariagrazia Rizzi, Imperator cognoscens decrevit. Profili e contenuti dell’attivita’ giudiziaria imperiale in eta’ classica (Milan: Giuffrè, 2012); Andreas von Schilling,

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30 Kaius Tuori where individual emperors would intervene in cases where they had been petitioned or where they thought they needed to decide the course of action. Some cases are quite extraordinary in this respect. For example Augustus was petitioned to bring to justice a person accused of manslaughter in the Greek city of Cnidos in the year 6 ce. Instead of handing the person over, Augustus decided to investigate the matter, appointing a high-ranking official to hear witnesses and to get to the bottom of things. After the material truth had been uncovered, he gave his own ruling, based on Roman legal principles. This was despite the fact that Cnidos was nominally a free city that would have had independent jurisdiction.14 What remains puzzling is why Augustus acted the way he did, making a claim to jurisdiction where he need not. Was it perhaps clear that the situation was such that the widow at the centre of the case could not have received a fair trial in Cnidos? Or was the real reason perhaps that Augustus wanted to demonstrate his power in a symbolic way by ensuring justice was served in a case that had caused uproar? Whatever the reason, Augustus was suddenly claiming universal jurisdiction. While the jurisdiction of the Roman emperor was not defined in any concrete way, there were important components that had a crucial impact in the way the power that the jurisdiction entailed was formulated. The primary one was that of imperium. Each of the higher Roman magistrates had a commanding power defined as imperium and as its sign, they were accompanied by lictors bearing the axe and the rods as its symbol. That imperium was defined through the tasks of the magistracy and thus a governor, for example, had imperium in the province that he was assigned to. The emperor had imperium maius (a greater imperium) that was general and not defined temporally. Thus, imperial imperium (yes, a tautology to show etymology) surpassed those of the traditional magistrates and gave the emperor in theory unfettered power.15 The rule over the sea was of paramount importance to Rome, which relied on the wide-scale import of grain from the provinces. Nevertheless, there was never in the Roman political or legal discussion a claim presented that Rome should rule the waves or claim sovereignty over the sea. The sea was legally construed as a res communis. Even when Romans battled pirates that imperilled the grain imports, there was never a claim Poena extraordinaria: Zur Strafzumessung in der frühen Kaiserzeit (Berlin: Duncker & Humblot, 2010); Veronika Wankerl, Appello ad principem (Munich: Beck, 2009); Jean-Pierre Coriat, Le Prince législateur: la technique législative des Sévères et les méthodes de création du droit impérial à la fin du Principat (Rome: École française de Rome, 1997); Tor Hauken, Petition and Response: An Epigraphic Study of Petitions to Roman Emperors 181–249 (Bergen: The Norwegian Institute at Athens, 1998); Tony Honoré, Emperors and Lawyers: With a Palingenesia of Third-Century Imperial Rescripts 193–305 ad (Oxford: Clarendon Press, 1994); Fergus Millar, The Emperor in the Roman World, 2nd edn (London: Duckworth, 1992 [1977]); Jochen Bleicken, Senatsgericht und Kaisergericht: Eine Studie zur Entwicklung des Prozessrechtes im frühen Prinzipat (Göttingen: Vanderhoeck & Ruprecht, 1962); John Maurice Kelly, Princeps Iudex (Weimar: Hermann Böhlaus, 1957); Hans Volkmann, Zur Rechtsprechung im Principat des Augustus, 2nd edn (Munich: Beck, 1969 [1935]). 14 See Tuori (n. 13), 84–9 on this case. 15 John Richardson, The Language of Empire: Rome and the Idea of Empire from the Third Century bc to the Second Century ad (Cambridge: Cambridge University Press, 2008). On the later significance of the Roman concept of imperium for universal claims of sovereignty and jurisdiction, see e.g. James Muldoon, Empire and Order: The Concept of Empire, 800‒1800 (London: Macmillan Press Ltd, 1999).

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The Beginnings of State Jurisdiction 31 that Rome have the exclusive right to rule the sea. Pompey, the Roman general who was given the task of freeing the sea of pirates that were threatening the grain supply, was given the command over the sea and the coast up to 50 miles inland. Instead of laying out a Roman claim to that area, the definition was in a sense to define the province of Pompey, the area in which he was supposed to operate.16 The issue of piracy was also significant in another way regarding jurisdiction. Since piracy was a threat to trade, and interruptions of the grain supply would mean starvation for the rapidly expanding urban population of Rome, the pirates that were caught were dealt with quickly and painfully. In a very famous quote from Cicero, pirates were called the enemies of humanity (communis hostis omnium [De Officiis 3.107], the probable source for the expression hostis humani generis, enemies of humanity17). Pirates, like bandits and other characters considered to be beyond the pale, were not even granted a trial.18 While the Roman usage of the concepts of territoriality and sphere of influence were beyond the simple modern conceptions of geographical areas and their borders as understood in sense of international law, the development of legal literature drew equally from the Roman private law tradition. There, the concept of ownership was strictly defined in the geographic sense. The Roman land surveyors (agrimensores) honed the craft of measuring the land, the borders between plots, and the areas they encompassed. Roman jurists would equally focus on how territorial ownership operated, how land rights were determined, and how one gained ownership of land. These legal doctrines, especially in the case of defining the delimitation of ownership and rights towards the sea, were later of major influence in the formation of the international law doctrine of the rule of the sea and the doctrine of terra nullius. For example, strict rules forbade the occupation of public places in a way that disturbed the use by others.19 However, in the application of the rules of Roman civil law in and beyond the oceans was equally a moment where the rules were themselves transformed by their application to fields previously unknown.

16 Cassius Dio, Roman History, 36.20–36; Philip De Souza, Piracy in the Graeco-Roman World (Cambridge: Cambridge University Press, 2002), 149–76. 17 The term hostis humani generis has a long and convoluted history in international law, starting from Cicero and Augustine, becoming institutionalized in Grotius and British admiralty law. 18 Robert Knapp describes the pirates and bandits as the most marginalized groups in the Roman legal system. Robert C. Knapp, ‘Legally Marginalized Groups’, in Paul Du Plessis, Clifford Ando, and Kaius Tuori (eds.), Oxford Handbook for Roman Law and Society (Oxford and New York: Oxford University Press, 2016), 370–2. 19 Celsus in Dig. 43.8.3. pr. Litora, in quae populus Romanus imperium habet, populi Romani esse arbitror: 1. Maris communem usum omnibus hominibus, ut aeris, iactasque in id pilas eius esse qui iecerit: sed id concedendum non esse, si deterior litoris marisve usus eo modo futurus sit. ‘The shores over which the Roman people has dominion I consider to belong to the Roman people. 1. The sea, like the air, is for the common use of all mankind. Piles sunk in the ocean belong to him who sank them, but this is not to be allowed if the use of the shore or the sea will be impaired in consequence.’ These, like Dig. 43.8.2. pr were initially probably meant to regulate the use of public land, but were equally applicable to the sea as public space. Mario Fiorentini, Fiumi e mari nell’esperienza giuridica romana (Milan: Giuffrè, 2003).

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32 Kaius Tuori Roman law doctrine had thus a major influence in the creation of the international legal doctrine on the definition of territorial thought, but the Roman rules that were applied in a novel way were in fact rules of private law. As a consequence, this thought did not necessarily reflect the Roman ideas themselves, but rather the later reinterpretation of the Roman doctrines of state power and private law in ways that would have appeared alien to the Romans themselves.

III. Caracalla and the Territorial Principle Although the emperor could declare himself to be a universal ruler, a ruler of the world, during the reign of Antoninus Pius, that did not mean that Rome itself would have been a universal empire. Law, being subject to Roman law and thus party to the privileges it gave, was tied to Roman citizenship and the benefit of recourse, according to the rules of ius civile, was restricted to citizens. As we will see in this section, this personality principle underwent significant changes during the Severan period (193–235 ce). Though the traditional narrative of a shift from the personality principle to the territoriality principle in the Antonine constitution of 212 ce is, upon closer examination, not such a drastic change, the doctrinal development in law illustrates how the discussion over universality and territoriality developed. In the traditional literature, the formalistic conclusion was that the Antonine constitution made the division between ius civile and ius gentium redundant.20 The ancient world was, if such a sweeping definition is to be used, pluralistic. This pluralism extended to law and to social and ethnic spheres. For example, the Roman Empire was strongly segmented in that the citizens of Rome were privileged, and to become a citizen meant a rise in status worthy of celebration and advertisement in inscriptions and ceremonies. The very fact that a foreigner could become a citizen fairly easily and that freed slaves were admitted to become citizens was exceptional in the ancient world; for example, most Greek cities did not allow it at all (in Athens metics, the resident foreigners, were rarely given citizenship). The Social War (90–88 bce) that pitted Rome against its former allies in Italy was mostly about citizenship and equal rights. The subsequent Roman policy was to gradually grant citizenship to local elites in the provinces as a sign of benevolence and privilege, with the aim of getting the local elites to support Roman power. For much of its history, Rome was populated by citizens and non-citizens alike, where one of the privileges of citizenship was the protection accorded by Roman laws and magistrates.21 20 Kaser (n. 4). 21 The classic study is still A. N. Sherwin-White, The Roman Citizenship (Oxford: Clarendon Press, 1973).

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The Beginnings of State Jurisdiction 33 Roman law followed Roman citizenship, which in turn followed Romanization, the adaptation of Roman culture. The issue of citizenship was thus linked with civilization and Romanness in a complicated manner. One could be a lowly slave but, upon manumission, perhaps as a sign of good service and the attainment of a level of civilization, one gained citizenship. As mentioned, this policy was unique in the ancient world. In most ancient cultures, slaves were not freed on a regular basis nor were they granted full citizen rights. For example in Athens, the most open and cosmopolitan of the Greek cities, freed slaves did not become citizens, but metics.22 The traditional view was that the imperial decree called Constitutio Antoniniana granted citizenship to all inhabitants of the empire in 212 ce.23 Recent studies have called this into question. It may be argued that even after the Constitutio Antoniniana, civilization and Romanization were still the standard of what and who could be considered Roman. A papyrus published in 1910, the Giessen papyrus 40.I, provides a crucial c ontemporary confirmation for the law that many had considered to be a false flag, but in doing so it raised numerous new questions about what the constitution could actually mean. In the text, there were limitations that would bar uncouth persons, like particularly uncultured Egyptians or primitive tribes conquered by the Romans, from enjoying the benefits of citizenship, even though they were inside the empire. Thus, they were to remain dedicitii, vanquished enemies.24 This demonstrates how persons who were incapable of cultivation and civilization, essentially becoming Romans, were excluded from citizenship. The historian Cassius Dio famously maintained that the aim of the grant of citizenship was to expand the tax base by increasing the number of citizens who paid the full tax burden (Cassius Dio, Roman History, 78.9). Similarly, the jurist Ulpian wrote that Caracalla made all people in the empire citizens: In orbe Romano qui sunt ex constitutione imperatoris Antonini cives Romani effecti sunt (Dig. 1.5.17). The impact of the Constitutio Antoniniana has been evaluated in two ways: first, the legal route—that is, to look at local cases and to see whether Roman law phased out local laws—and second, to see whether the number of citizens rose dramatically with the Antonine constitution. 22 Matthew J. Perry, Gender, Manumission and the Roman Freedwoman (Cambridge: Cambridge University Press, 2014); Henrik Mouritsen, The Freedman in the Roman World (Cambridge: Cambridge University Press, 2011); Keith R. Bradley, Slavery and Society at Rome (Cambridge: Cambridge University Press, 1994). Compare with Rachel Zelnick-Abramovitz, Not Wholly Free: The Concept of Manumission and the Status of Manumitted Slaves in the Ancient Greek World (Leiden: Brill, 2005). 23 P.Giss. 40.1; Cassius Dio, Roman History, 77(78).9.4; Dig. 1.5.17; Christoph Sasse, Die Constitutio Antoniniana (Wiesbaden: Otto Harrassowitz, 1958); Hartmut Wolff, Die Constitutio Antoniniana und Papyrus Gissensis 40 I (Cologne: Universität zu Köln, 1976); Kostas Buraselis, Theia Dorea. Das GöttlichKaiserliche Geschenk. Studien zur Politik der Severer und zur constitutio Antoniniana (Vienna: Verlag der Österreichischen Akademie der Wissenschaften, 2007); Ari Z. Bryen, ‘Reading the Citizenship Papyrus (P.Giss. 40)’, in Clifford Ando (ed.), Citizenship and Empire in Europe 200‒1900: The Antonine Constitution after 1800 Years (Stuttgart: Steiner Franz Verlag, 2015), 29–37. 24 Clifford Ando (ed.), Citizenship and Empire in Europe 200‒1900: The Antonine Constitution after 1800 Years (Stuttgart: Steiner Franz Verlag, 2015).

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34 Kaius Tuori The first approach assumes that once everybody was a citizen, the use of local laws would cease, and Roman law would become the law of the land everywhere in the empire. There are two contradictory tendencies that make it hard to give a definite answer to what happened. On one hand, Roman law does spread to the provinces, but this development continues even after the Roman Empire itself ceases to exist (as demonstrated by the so-called barbarian codes, such as the Lex Romana Visigothorum) while, on the other, there is continued evidence of the use of local laws. Thus, for example, a rescript by Diocletian and Maximianus (Cod. 4.19.21), a century after the Antonine constitution, still refers to the applicable laws in plural, signifying that there was more than one law that might have been applied. The second approach would be to look at how the use of Roman names spreads. The spread of imperial gentilicia (surnames) is an indication of the spread of citizenship, because those who gained citizenship for example by being manumitted from slavery, took on a new surname. In the case of imperial freedmen, the surname would be that of the emperor. Thus, because the official name of Emperor Caracalla was Marcus Aurelius Severus Antoninus Augustus, the freedmen manumitted by him or his successors went by the name Aurelius. For example in the province of Bithynia, 56 per cent of imperial gentilicia are Aurelii.25 This tendency, which is evident even elsewhere,26 has been interpreted as a sign of the rise in citizenship brought about by the Antonine constitution. Much of the debate has since balanced out, with different sides accepting major qualifications of the initial absolute statements. Thus, it has been accepted that local laws continued to have a major impact in court practice and that would not necessarily mean that the Roman law would not have been in force. Rather, it is accepted that local laws continued to have validity as provincial custom under Roman law. There are some indications and ongoing debate over whether, for example, customs such as endogamic marriages in Egypt, that would have been obscene to the Roman, were in fact banned.27 The Antonine constitution became a major event in the history of jurisdiction possibly somewhat belatedly. In the earlier scholarship, references to it as a major policy change were rare until the rise of the territorial doctrine in the scholarship on international law. What this means is a matter of debate, since some of the more recent documentary discoveries have also affected the interpretation of the text. However, it is uncontroversial that the discovery of the implications of the Antonine constitution were tied to the changes in the modern international legal doctrine on jurisdiction.

25 H.-L. Fernoux, Notables et élites des cités de Bithynie aux époques hellénistique et romaine: IIIe siècle av. J. C.-IIIe siècle ap. J.-C.: essai d’histoire sociale (Lyons: Collection de la Maison de l’Orient méditerranéen, 2004), 201, 214, 233. 26 Sherwin-White (n. 21) notes a tremendous rise in the use of the name Aurelius after 212 in Dura. 27 Sherwin-White (n. 21), 386–8; J. M. Modrzejewski, ‘Diritto romano e diritti locali’, in A. Schiavone (ed.), Storia di Roma III.2 (Turin: Einaudi, 1993), 997–1005.

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The Beginnings of State Jurisdiction 35

IV. Contesting Universalities: Pope and Emperor The idea of universal empire and universal jurisdiction was resurrected in the medieval debates on the relationship between the pope and the emperor, where both sought to establish a universal authority or even jurisdiction. In the case of the emperors, the question was whether the Holy Roman Emperor was endowed with universal authority vis-à-vis mere kings or lesser rulers, a kind of universal monarchy. In the case of the pope, the matter was ultimately about the relationship with the emperor and thus whether the pope as the vicar of Christ would have superior authority. The disputes involved the re-evaluation of the legal framework through which the jurisdictional power would be executed and the role of Roman and Canon law. In practical terms, many of the controversies were about very concrete matters such as the right to appoint or depose bishops. The disputes themselves were both complicated and long lasting. We will here take the example of a case between Frederick I Barbarossa and the pope at Besançon in 1157 to demonstrate how Roman law scholarship played a part in the disputes. The idea of universal jurisdiction was based on the position of the emperor and the links, real or imagined, of the Holy Roman emperors with the ancient Roman emperors. The principle of translatio imperii, the idea the authority of the Roman emperors was transferred to some other entity, was invoked with great enthusiasm by putative successors in East and West. Byzantine emperors and popes would claim to be the true inheritors of the purple, the symbolic power of the Roman emperors.28 Much of the contention was more about cultural memory than purely legal doctrine. Emperors like Charlemagne (742–814) would gain outsize reputations, where they would be invested with often miraculous abilities and laying claims to unprecedented powers. In the case of Charlemagne, there exists a long tradition of universal monarchy, where kings and notables would plead fealty to him and whose authority would be sanctioned by a papal coronation and the religious aura that it brought. In the account of the chronicler Notker, it was Pope Leo III who had requested the emperor’s assistance, calling him the ruler of the world. Afterwards, at mass on Christmas Day 800, the pope had first crowned him, calling him Emperor and Augustus. Then the pope had prostrated before him, with the crowd cheering. Whether this account is reliable is of course immaterial; what matters was the impression that was created. The pope called the emperor the ruler of the world, supplicating himself to the emperor. The people cheering the emperor could be interpreted as electing him emperor by popular acclamation, another ancient Roman precedent. Finally, the religious aura of the coronation would make it natural to claim that the emperor was emperor by the grace of God. The 28 Anne A. Latowsky, Emperor of the World: Charlemagne and the Construction of Imperial Authority, 800‒1229 (Ithaca and London: Cornell University Press, 2013).

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36 Kaius Tuori memory of Charlemagne was also actively used by his successors such as Frederick I Barbarossa (1122–90), who had him canonized under dubious circumstances. In this debate, forgeries and fabrications were presented on both sides, seeking to prove the primacy of one over the other.29 The schism between the emperor and the pope, in this case Barbarossa and the popes during his long reign (Adrian IV and Alexander III), was about primacy, but it was equally about Roman law and the concept of jurisdiction. The renaissance of Roman law scholarship had led to a new appreciation of the doctrine that the emperor was dominus mundi, the lord of the world. This would have allowed the emperor to circumvent the need for a papal blessing and the recognition of papal authority that had been enforced with intricate ceremonies such as having the emperor walk the pope’s horse on foot. In contrast, the papal view was that the emperor was merely the pope’s agent in ruling the world. The dispute at Besançon in 1157 was between the imperial chancellor Rainaldo de Dassel and the papal legate Rolando Bandinelli, future pope Alexander III. The source of the disagreement was a papal statement in which it was implied that the pope would bestow beneficia, the old term for the privileges given by the Roman emperors and in medieval practice the grants given by the feudal lords to their fiefs. Barbarossa himself would assert his superiority over the other kings of Europe, as would his successors. They were pejoratively called little kings or provincial kings. What we know of the meeting in Besançon is through the writings of Otto of Freising, Barbarossa’s uncle, who was one of the most important propagandists of the imperial side. According to him, a letter from Pope Adrian IV was read in the council. In it, the pope implied that the pope had conferred on the emperor his title and lands as a beneficium. The assembled nobles understood this to mean that the pope was the emperor’s superior who had given him the empire as a fief, a view that was supported by the utterances of the pope’s ambassadors. The nobles were outraged, as was Barbarossa. The papal ambassador was nearly killed on the spot. The pope later clarified that he meant beneficium merely as a blessing, but the damage was done. When the said Rolando Bandinelli was later elected as Pope Alexander III, Barbarossa raised his own candidate as antipope. Ironically enough, Barbarossa had no qualms in walking the antipope’s horse.30 The legal dispute continued soon after in the meeting in Roncaglia in 1158, where Barbarossa would place the question to the jurists whether he was lord of all the world. The jurists in question were Bulgarus and Martinus, two of the famous four doctors of Bologna. In answering the query, Bulgarus mentioned that the emperor is the sovereign lord of the world, but not with regards to property. Martinus, on the other hand, replied unconditionally that the emperor is the unconditional and universal sovereign. Barbarossa would then and there donate his horse to Martinus, prompting the sour Bulgarus to quip that amisi equum, quia dixi aequum, quod non fuit aequum (which translates 29 Muldoon (n. 15), 23–4; Latowsky (n. 28). 30 Otto of Freising, The Deeds of Barbarossa, trans. Charles Christopher Mierow (New York: Columbia University Press, 1953), 181–200; Muldoon (n. 15), 38–41.

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The Beginnings of State Jurisdiction 37 roughly as ‘I lost the horse because I said it right; this is not right’).31 It should be mentioned that similar anecdotes circulate with different emperors and different lawyers. The doctrine of the emperor being the lord of all the world was of course derived from the earlier mentioned statement by Antoninus Pius. This was taken up by the Glossa ordinaria (1.6.34) and elsewhere in the civil law literature. The disputes between the emperor and the pope were at their heart the disputes between two universalist regimes who were competing over who could be legitimately the lord of all the world. For the question of international jurisdiction, what was more important was the relationship between the local rulers, the ‘petty kings’ of Barbarossa or others, who were supposedly under universal jurisdiction. In the case of practical legal rules applying to individuals, the medieval legal doctrine vacillated between the personality principle and the territoriality principle. In general, rules regulating the capacity of a person would be applicable regardless of where the person was, according to the personality principle, while rules over property would be governed by the rules applicable in that territory. However, in the case of criminal law it was largely agreed that even aliens would be responsible for the crimes they committed according to the rules of the region. Due to the convoluted manner in which these rules were applied and disputed, there was equally a somewhat shared agreement that the rules of the ius commune, the common law based on Roman law, would have secondary universal validity, meaning that they would be applied where local rules were not.32 In the logic of the medieval jurists, the choice of law was equally a choice of jurisdiction, meaning that according to many jurists the use of Roman law implied the acceptance of the imperial supremacy.33 The medieval universalist discourse is of course much wider than can be recounted here. Like the Holy Roman emperors, Byzantine emperors were eager to present themselves as universal rulers. In a similar fashion, the Habsburg emperors and the Spanish kings of the sixteenth century had flirted with the idea of a universal empire in different guises.

V. The Influence of Premodern Legal Doctrine in the Formation of State Jurisdiction in International Law Where the doctrines of sovereignty or property were not applicable, the early scholars of international jurisdiction were sometimes at odds about how to justify the existence of jurisdiction beyond the traditional realms. Grotius began to formulate a theory based 31 The story is originally told by Otto Morena. Friedrich C. von Savigny, Geschichte des römischen Rechts im Mittelalter IV (Darmstadt: Wissenschaftliche Buchgesellschaft, 1956 [1826]), 180–2; Paul Koschaker, Europa und das römisches Recht, 4th edn (Munich: Beck, 1966), 54. 32 Ryngaert (n. 7), 45–7. 33 Muldoon (n. 15), 96–7.

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38 Kaius Tuori on natural law that sought to derive jurisdiction from the state of nature itself, meaning that it would be prior to the jurisdiction of the state. In De iure praedae, Grotius assigns the power to punish to the state by the law of nations: Is not the power to punish essentially a power that pertains to the state? Not at all! On the contrary, just as every right of the magistrate comes to him from the state, so has the same right come to the state from private individuals; and similarly, the power of the state is the result of collective agreement . . . Therefore, since no one is able to transfer a thing that he never possessed, it is evident that the right of chastisement was held by private persons before it was held by the state. The following argument, too, has great force in this connexion: the state inflicts punishment for wrongs against itself, not only upon its own subjects but also upon foreigners; yet it derives no power over the latter from civil law, which is binding upon citizens only because they have given their consent; and therefore, the law of nature, or law of nations, is the source from which the state receives the power in question.34

What Grotius does here is to reverse a long line of Spanish international legal doctrine, which was based on the idea of territory (Hugo Grotius, De iure belli ac pacis (IBP) 2.20.40.4). The Iberian rule had been to assign ownership and to derive jurisdiction from that. In consequence, the claims that were made were at times extraordinary. The papal bulls issued in the fifteenth century granted the Spanish and the Portuguese exclusive possession not only to vast sections of the uncharted territories of the world, but also the high seas themselves. This was famously contested by the Dutch, who hired Grotius to prove their claim.35 The way that Grotius originally went about proving things was through natural law and by using Roman law as a source for natural law. He ends up demonstrating how institutions like ownership and property are in fact not dependent on the state, but that they are institutions in the state of nature. Because these rights of ownership and obligations are not dependent on the state, their enforcement must be universal. What Grotius proposes (IBP 1.3.2.1) is that while there were now tribunals that could enforce rights, these rights must be enforceable even elsewhere. Thus, where there was no government, such as the high seas, the wilderness or desert islands, the need and legitimacy for jurisdiction remained. In extreme cases, where the judges will either not take the case or the opponents will not subject themselves to the judge’s jurisdiction, there is still the possibility of self-help.36 There was thus a natural right to punish.

34 De iure praedae commentarius, trans. Gwladys L. Williams and Walter H. Zeydel (Oxford: Carnegie Endowment for International Peace, Oxford University Press, 1950), 1:91–2. This Carnegie edition consists of both the translation and the original edition of the Latin text by H. G. Hanaker (The Hague, 1868). 35 Benjamin Straumann, Roman Law in the State of Nature: The Classical Foundations of Hugo Grotius’ Natural Law (Cambridge: Cambridge University Press, 2015), 28–9, 216; Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999). 36 Straumann (n. 35), 188, 200.

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The Beginnings of State Jurisdiction 39 The states’ natural right to punish was derived from the natural rights of the individuals that comprised of the state and this was the foundation of the power of the state’s jurisdiction against foreigners. This was a similar argument that was made by Locke (Second Treatise of Government 9). For Grotius, these natural rights were equally the basis for just war, if war was the only way through which just claims could be executed.37 It should be noted that De iure praedae was not published until fairly late and thus the direct influence of that text is debatable, but it allows us to see the fundamental changes that Grotius instituted and which he published in the De iure belli ac pacis. In all of these instances, the creation of the new interpretation of sovereignty and jurisdiction was done through the rereading of the ancient materials, the sources of Roman law, and more generally ancient civilization.

VI. Conclusions The investigation of premodern forms of international jurisdiction is by necessity an exercise in creative interpretation. The reason for this is that most of the modern conceptions of jurisdiction—such as sovereignty, citizenship, property, or territory—were understood differently. Thus, conventional ideas such as the division between the personality principle and territorial principle break down in ways that are both interesting and challenging in discussing the foundations of the international legal order. What the analysis of cases from the ancient and medieval legal history demonstrates is that claims of universality and its limitations were a long-standing preoccupation from the beginnings of the jurisprudence investigating the legal framework of legal pluralism between empires, city states, and local normative orders. The reason why the investigation on the ancient Roman law and its ways of building the normative framework of the edges and boundaries of legal orders and the civilized and uncivilized is so important is that it laid the groundwork for the subsequent growth of not only international law itself, but also the jurisprudence of empires. However, while Roman law was fundamental in these processes, it also underwent a t ransformation that is quite remarkable. The Roman law that was utilized in the formation of the rules of international jurisdiction was Roman private law, not public law. The rules of property, citizenship, and privilege were used as precedents and morphed into the foundations of modern international law.

37 Ibid., 208–11.

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Chapter 3

The Lot us Case i n Con text Sovereignty, Westphalia, Vattel, and Positivism Stéphane Beaulac*

I. Introduction

41

II. State Sovereignty in Context: Westphalia and Vattel

43

III. The Lotus Case Revisited: Positivism and Prohibitive Rules on Jurisdiction

47

IV. Conclusion: Impact of the Lotus Case

55

* Thanks to Vanessa Ntaganda for research assistance; cheers also to Noura Karazivan for comments. This chapter was realized in part within the Louise Arbour—Université Montréal Rule of Law Project (Tang Prize Foundation).

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The Lotus Case in Context 41

I. Introduction In examining jurisdiction in international law from a historical perspective, most people—be they in academia, government, or elsewhere—would agree that the concept, even in modern terms, need to be considered in light of the judgment of the Permanent Court of International Justice (PCIJ) in the 1927 case of SS Lotus1 (the ‘Lotus case’), between France and Turkey. For better or worse, it has been considered ‘a turning point in jurisdictional jurisprudence’;2 the decision ‘is still one of the most often cited international law cases’3 (in both legal practice and doctrine). Accordingly, in spite of the major changes that occurred in the law of state jurisdiction, during the last ninety or so years, a critical assessment of this paradigmatic judgment that set the tone, so to speak, to everything else that followed, is absolutely indispensable. To begin with something uncontroversial, although jurisdiction is said to have a multiple of meanings depending on the context, in international law the term is generally deemed to describe the ability (as well as the limits thereof) for a state or other regulatory authority to exert legal power—in making, enforcing and adjudicating normativity—over persons, things, and places.4 Note right away, and also because it will be highly relevant later, that this definition highlights the different dimensions of the concept—that is to say, prescriptive (or normative), enforcement (or investigating) and adjudicative jurisdiction,5 depending on whether the power concerns, within the organizing structure of a state, the legislature (parliament), the executive (government) or the judiciary (courts);6 it is worth mentioning, for the sake of completeness, functional jurisdiction, essentially in the field of the law of the sea.7 This classification, with possible overlaps of course, is also uncontested;8 other chapters of this Handbook will have dwelled upon them in further details, no doubt. 1 SS Lotus (France v Turkey) [1927] PCIJ Series A, No. 10. 2 Danielle Ireland-Piper, ‘Prosecutions of Extraterritorial Criminal Conduct and the Abuse of Rights Doctrine’, Utrecht Law Review 9 (2013): 68, 69. 3 Armin von Bogdandy and Markus Rau, ‘The Lotus’, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, 2nd edn (Oxford: Oxford University Press, 2013), para. 15. 4 See Bruno Simma and Andreas Müller, ‘Exercise and Limits of Jurisdiction’, in James Crawford and Martti Koskenniemi (eds.), Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012), 134; and Vanghan Lowe and Christopher Staker, ‘Jurisdiction’, in Malcolm Evans (ed.), International Law, 3rd edn (Oxford: Oxford University Press, 2010), 313. 5 See Michael Akehurst, ‘Jurisdiction in International Law’, British Year Book of International Law 46 (1972–3): 145. 6 Some publicists limit the types of jurisdiction to two categories, prescriptive and enforcement, the latter including adjudicative; e.g. Gideon Boas, Public International Law—Contemporary Principles and Perspectives (Cheltenham: Edward Elgar, 2012), 246. 7 See Cedric Ryngaert, ‘The Concept of Jurisdiction in International Law’, in Alexander Orakhelashvili (ed.), Research Handbook on Jurisdiction and Immunities in International Law (Cheltenham: Edward Elgar, 2015), 59. 8 See Frederick A. Mann, ‘The Doctrine of Jurisdiction in International Law’, Hague Recueil 111 (1964–I): 1.

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42 Stéphane Beaulac We are told, again and again, that the concept of jurisdiction is intrinsically linked with sovereignty; it was referred to as ‘an aspect of sovereignty’9 and as ‘a manifestation of State sovereignty’.10 Arbiter Max Huber in the 1928 case of Island of Palmas,11 wrote this: ‘Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State.’ A few years after the Lotus case, in 1933, the case of Eastern Greenland12 saw the PCIJ explicate the connection between jurisdiction and sovereignty: ‘Legislation [prescriptive jurisdiction] is one of the most obvious forms of the exercise of sovereign power.’13 Similarly, Frederick Mann writes: ‘International jurisdiction is an aspect of an ingredient or a consequence of sovereignty . . . [J]urisdiction involves both the right to exercise it within the limits of the State’s sovereignty and the duty to recognize the same right of other States.’14 As a consequence of the different ramifications of sovereignty—independence, equality of states, non-interference15—in regard to state jurisdiction, it is noteworthy that this notion actually acts not only as the main justification for, but also as a restraining device to exercising legal competence. Having set out these groundwork elements, essential to any discussion about state jurisdiction, it is now possible to sketch out the contours of the present chapter, within the part of the book focusing on the historical perspective. Before examining the Lotus case, it is necessary to go way back before the judgment, with a brief excursion in the seventeenth and eighteenth centuries, examining the Peace of Westphalia and the doctrinal work of Emer de Vattel; the objective is to allow for a discussion of sovereignty (and thus jurisdiction) truly in context, both historically and theoretically. Then the 1927 PCIJ judgment will be revisited in detail, with a view to bringing out the core lessons flowing from this case, all the while being aware of the prevalent epistemology of international law at the time. The conclusion will come back to the heritage of the Lotus case, with regard to the rules on state jurisdiction, as well as for international law in general.

9 James Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford: Oxford University Press 2012), 456. 10 Derek W. Bowett, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’, British Year Book of International Law 53 (1983): 1, 1. 11 Island of Palmas case (Netherlands, USA) (1928) 2 RIAA 829, 838. See also John G. Ruggie, ‘Territoriality and Beyond: Problematizing Modernity in International Relations’, International Organization 47 (1993): 139, 151. 12 Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCIJ Reports, Series A/B, No. 53. 13 Ibid., 48. 14 Frederick A. Mann, ‘The Doctrine of International Jurisdiction Revisited after Twenty Years’, Hague Recueil 186 (1984): 9, 20. 15 See Malcolm N. Shaw, International Law, 6th edn (Cambridge: Cambridge University Press, 2008), 645.

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The Lotus Case in Context 43

II. State Sovereignty in Context: Westphalia and Vattel It is sometimes said that territoriality as the foundational basis of international jurisdiction is historically contingent.16 Thus it is worth giving a good look at what is considered the most important historical event in international relations and international law17 (though this understanding is, of course, Eurocentric18), which resonates particularly loudly in the law of jurisdiction, namely the Peace of Westphalia.19 Although some have been critical of the social construction around the treaties that ended the Thirty Years War in 1648,20 it is deemed ‘the most important, and in its results the most enduring, public act of modern history, for from it dates the present political system of Europe as a group of independent sovereign states’.21 Indeed, Westphalia has been ‘considered, rightfully so, as the starting point of the historical development of the present international law’.22 Specifically, regarding issues of state competence, ‘Westphalian sovereignty thus creates a system in which legal jurisdiction is congruent with sovereign territorial borders.’23 It is, of course, a mere epistemology to understanding the problematics of state jurisdiction, but one which became an

16 Ryngaert (n. 7), 51. 17 See Leo Gross, ‘The Peace of Westphalia, 1648–1948’, American Journal of International Law 42 (1948): 20. 18 See, generally, Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004). 19 See, generally, Stéphane Beaulac, The Power of Language in the Making of International Law: The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia (Leiden: Martinus Nijhoff, 2004). 20 See David Kennedy, ‘Primitive Legal Scholarship’, Harvard International Law Journal 27 (1986): 1, 1: ‘International legal scholars have made much of 1648’ (footnotes omitted). See also Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999); Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’, International Organization 55 (2001): 251; and Benno Teschke, The Myth of 1648: Class, Geopolitics, and the Making of Modern International Relations (London and New York: Verso, 2003). 21 David J. Hill, A History of Diplomacy in the International Development of Europe, II: The Establishment of Territorial Sovereignty (New York: Longmans, Green, 1906), 599. 22 Dionisio Anzilotti, Cours de droit international, I: Introduction: théories générales (Paris: Sirey, 1929), 5; translation of: ‘considérés avec raison comme le point de départ du développement historique du droit international actuel’. See also, to the same effect, Robert Redslob, Histoire des grands principes du droit des gens: depuis l’antiquité jusqu’à la veille de la grande guerre (Paris: Rousseau, 1923), 213. 23 Kal Raustiala, ‘The Geography of Justice’, Fordham Law Review 73 (2005): 2501, 2509. See also Miles Kahler and Barbara F. Walter (eds.), Territoriality and Conflict in an Era of Globalization (Cambridge: Cambridge University Press, 2006).

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44 Stéphane Beaulac orthodoxy in Europe and, by means of the colonies,24 in most of the world since the seventeenth century and lingering on to this day.25 Westphalia has since been considered, ‘a new diplomatic arrangement—an order created by states, for states—and replaced most of the legal vestiges of hierarchy, at the pinnacle of which were the Pope and the Holy Roman Emperor’.26 Before the turn of the seventeenth century and the break of the Thirty Years War in 1618, the feudal type of governance in Europe ‘involved the decentralisation and personalization of political power by lords, creating the “parcellized sovereignty” of the medieval “state” ’.27 The exercise of ‘public’ power was conceived not mainly in terms of geographical location but rather in relation with origin, nationality, and religion:28 ‘people were subject to the laws of the community or tribe to which they belonged, rather than those of the territory on which they resided at a given moment’.29 Unlike the contemporary understanding of territory and the authority exercised over it, in pre-Westphalia times, several legitimate claims by different polities over a piece of land could exist at the same time: ‘territoriality was vertically mediated and horizontally perforated by the various layers of sub-infeudation’.30 From a reality where public authorities were both overlapping and shifting over geographical spaces, the end of the medieval era with the Peace of Westphalia in 1648 signalled paradigm shift, no less.31 ‘By the end of the Thirty Years’ War, sovereignty as supreme power over a certain territory was a political fact, signifying the victory of the territorial princes over the universal authority of emperor and pope, on the one hand, and over the particularistic aspirations of the feudal barons, on the other.’32 The a ssociations between sovereignty and territory, as well as between sovereignty and territoriality, were not only natural, they have been ontologically 24 See Joan Fitzpatrick, ‘Sovereignty, Territoriality, and the Rule of Law’, Hastings International and Comparative Law Review 25 (2002): 303, 309. 25 See e.g. Henry Wheaton, History of the Law of Nations in Europe and America: From the Earliest Times to the Treaty of Washington, 1842 (New York: Gould, Banks, 1845), 69; and Théodore Ruyssen, Les Sources doctrinales de l’internationalisme, I: Des origines à la Paix de Westphalie (Paris: Presses universitaires de France, 1954), 487 et seq. See also, generally, Wilhelm Grewe, The Epochs of International Law (Berlin and New York: Gruyter, 2000). 26 Kalevi J. Holsti, Peace and War: Armed Conflicts and International Order, 1648–1989 (Cambridge: Cambridge University Press, 1991), 25 (footnotes omitted). 27 Benno Teschke, ‘The Origins and Evolution of the European States-System’, in William Brown, Simon Bromley, and Suma Athreye (eds.), Ordering the International: History, Change and Transformation (London: Pluto Press, 2004), 51. 28 Shalom Kassan, ‘Extraterritorial Jurisdiction in the Ancient World’, American Journal of International Law 29 (1935): 237, 237–8. 29 Ryngaert (n. 7), 52. 30 Benno Teschke, ‘The Metamorphoses of European Territoriality: A Historical Reconstruction’, in Michael Burgess and Hans Vollaard (eds.), State Territoriality and European Integration (London: Routledge, 2006), 44. 31 See Stéphane Beaulac, ‘The Westphalian Model in Defining International Law: Challenging the Myth’, Australian Journal of Legal History 8 (2004): 181. 32 Hans J. Morgenthau, ‘The Problem of Sovereignty Reconsidered’, Columbia Law Review 58 (1948): 341, 341.

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The Lotus Case in Context 45 necessary.33 Thus, in international law, it is said that, ‘the connection between jurisdiction and sovereignty is, up to a point, obvious, inevitable and almost platitudinous, for to the extent of its sovereignty a State necessarily has jurisdiction’.34 The idea of state sovereignty over their territories, which Westphalia made into the concept of territorial sovereignty, has been at the core of territoriality as the main—if not the sole, clearly the primary—basis for jurisdiction.35 ‘The political change from the medieval to the modern world involved the construction of the delimited territorial state which exclusive authority over its domain.’36 In short, since 1648, sovereignty has been the only game in town37 and, as a derivative, territorial sovereignty has become the most useful metaphor for apprehending issues of state jurisdiction.38 * * * To inject some theoretical perspective, along with the present historical account, the notion of sovereignty was articulated in contemporary terms, as well as externalized onto the international sphere, with two major doctrinal works, in the century before and the century after the Peace of Westphalia in 1648. Indeed, the conception of sovereignty, even in modern terms,39 has a clear genealogical lineage with both Jean Bodin’s Les six livres de la Republique,40 published in 1576, and Emer de Vattel’s Le Droit des gens,41 published in 1758. They correspond to the dual manifestations,42 the twin 33 See Christopher K. Ansell, ‘Restructuring Authority and Territoriality’, in Christopher K. Ansell and Giuseppe Di Palma (eds.), Restructuring Territoriality: Europe and the United States Compared (Cambridge: Cambridge University Press, 2004), 6. 34 Mann (n. 8), 20. 35 See Hannah L. Buxbaum, ‘Territory, Territoriality, and the Resolution of Jurisdiction Conflict’, American Journal of Comparative Law 57 (2009): 631, 632, who put it in terms of a triangular relationship between sovereignty, territory, and jurisdiction. 36 Mark W. Zacher, ‘The Territorial Integrity Norm: International Boundaries and the Use of Force’, International Organization 55 (2001): 215, 216. 37 See Stephen D. Krasner, ‘The Hole in the Whole: Sovereignty, Shared Sovereignty, and International Law’, Michigan Journal of International Law 25 (2004):1075, 1077. 38 See Harold G. Maier, ‘Jurisdictional Rules in Customary International Law’, in Karl M. Meessen (ed.), Extraterritorial Jurisdiction in Theory and Practice (London, The Hague, Boston: Kluwer Law International, 1996), 65. 39 See Wayne Hudson, ‘Fables of Sovereignty’, in Trudy Jacobsen, Charles Sampford, and Ramesh Thakur (eds.), Re-Envisioning Sovereignty: The End of Westphalia (Aldershot and Burlington: Ashgate Publishing, 2008), 19. 40 Jean Bodin, Les six livres de la Republique (Paris: Iacques du Puys, 1583), first published in 1576; the translation by Richard Knolles, Jean Bodin, The Six Bookes of a Commonweale (London: Impensis G. Bishop, 1606). See also Stéphane Beaulac, ‘The Social Power of Bodin’s “Sovereignty” and International Law’, Melbourne Journal of International Law 4 (2003): 1. 41 Emer de Vattel, Le Droit des gens; ou principes de la loi naturelle appliqués à la conduite and aux affaires des Nations and des Souverains, 2 vols. (London: n.p., 1758); the translation by Joseph Chitty, The Law of Nations; or, Principles of the Law of Nature, applied to the Conduct and Affairs of Nations and Sovereigns (Philadelphia: Johnson Law Booksellers, 1863). See also Stéphane Beaulac, ‘Emer de Vattel and the Externalization of Sovereignty’, Journal of the History of International Law 5 (2003): 237. 42 See Anne Peters, ‘Humanity as the A and Ω of Sovereignty’, European Journal of International Law 20 (2009): 513, 515–18.

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46 Stéphane Beaulac dimensions of this structural ideal—namely, internal sovereignty as per domestic constitutional law and external sovereignty as per public international law.43 This internal–external dichotomy has been clear for centuries: ‘sovereignty of the State may be looked at from without and from within: from without, as the independence of a particular State in relation to other [and] from within, as the legislative power of the body politic’.44 Bodin’s idea of absolute authority exclusively in the hands of the sovereign ruler, exercised within a territory and over a population, was not only accurate for the needs of the time,45 but it also proved most lasting in governance history.46 It also led other legal scholars, in France, to develop early versions of territorial jurisdiction, at the turn of the seventeenth century.47 As for Vattel, he endeavoured to revisit and adjust (internal) sovereignty with a view to externalizing the notion and, in effect, articulate a scheme for the political and legal organization of the international society.48 Among the main points of external sovereignty is the substitution of civitas Christiana— Christendom under the Holy Roman Emperor and the Pope—by territorial states, which enjoy independence in their relations among themselves, including the principles of equality and of non-intervention (non-interference).49 Vattel put it thus: ‘whatever privileges any one of them derives from freedom and sovereignty, the others equally derive the same from the same source’.50 He further wrote: ‘It is an evident consequence of the liberty and independence of nations, that all have a right to be governed as they think proper, and that no state has the smallest right to interfere in the government of another.’51 Most crucially, Vattel’s external sovereignty is the cornerstone of his edification of international law, what he referred to as ‘droit des gens’ (‘law of nations’). External sovereignty, understood as international independence, not only entails that states

43 See Neil Walker, ‘Late Sovereignty in the European Union’, in Neil Walker (ed.), Sovereignty in Transition (London: Hart Publishing, 2003), 3. 44 Johann Bluntschli, The Theory of the State, 2nd edn (Oxford: Clarendon Press, 1892), 501. See also Thomas J. Lawrence, The Principles of International Law (London: Macmillan, 1895), 56–7; Paul Fauchille, Traité de droit international public, 2 vols. (Paris: Rousseau, 1922), I, 224; and Armelle Treppoz, ‘Les Sujets du droit international public dans la jurisprudence du Conseil constitutionnel’, Droit Public 116(6) (2000): 1629, 1644. 45 See James L. Brierly, ‘Règles générales du droit de la paix’, Hague Recueil 58 (1936): 1, 24. 46 See Stéphane Beaulac, ‘Le Pouvoir sémiologique du mot “souveraineté” dans l’œuvre de Bodin’, International Journal for the Semiotics of Law 16 (2003): 45. 47 See e.g. Pierre Ayrault, L’Ordre, formalité et instruction judiciaire, dont les anciens Grecs et Romains ont usé és accusations publiques (Paris: Michel Sonnius, 1588). 48 See, generally, Emmanuelle Jouannet, Emer de Vattel et l’émergence doctrinale du droit international classique (Paris: Éditions Pedone, 1998). 49 See Thomas A. Walker, A History of the Law of Nations, I: From the Earliest Times to the Peace of Westphalia, 1648 (Cambridge: Cambridge University Press, 1899), 87. 50 Emer de Vattel, The Law of Nations; or, Principles of the Law of Nature, applied to the Conduct and Affairs of Nations and Sovereigns, trans. Joseph Chitty (Philadelphia: Johnson Law Booksellers, 1863), 149. 51 Ibid., 154.

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The Lotus Case in Context 47 are not submitted to any political authority (e.g. Holy Roman Empire, other states), it also means that states are not submitted to any legal authority; they are not ipso facto constrained by rules of international law.52 For Vattel, ‘independence is necessary to each State, in order to enable her properly to discharge the duties she owes to herself and to her citizens, and to govern herself in the manner best suited to her circumstances’.53 As a result, external sovereignty requires that states—which are independent and enjoy equality—voluntarily accept international normativity, be it conventional, customary, or else.54 Consequently, it has been clear since Vattel’s work in the eighteenth century that international law, including the law of jurisdiction, rests on the notion of (external) sovereignty and that the theory of sources in that legal system is grounded in the positivistic idea of voluntary acceptance of normativity55 (‘la thèse volontariste’56). This last feature on the nature of international law, closing the chapter section on the historical and theoretical context of state jurisdiction—focusing on Westphalia and Vattel—is an appropriate bridge to move to the Lotus case. Indeed, the underlying theme of the case analysis will be legal positivism.

III. The Lotus Case Revisited: Positivism and Prohibitive Rules on Jurisdiction The dominant epistemology behind international law is a form of positivistic legal theory, which methodology borrows from legal positivist scholars like Jeremy Bentham57 and John Austin.58 Building on Vattel’s doctrine, positivism became the prevalent theory in international law in the late nineteenth and early twentieth centuries, counting on the major contributions by German writers such as Georg Jellinek59 and 52 See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustannus, 1989), 94. 53 De Vattel (n. 50), xiv. 54 See Horatia Muir Watt, ‘Droit naturel et souveraineté de l’Etat dans la doctrine de Vattel’, Archives philo. droit 32 (1987): 71, 77. 55 See, generally, Stéphane Beaulac, Précis de droit international public: théorie, sources, interlégalité, sujets, 2nd edn (Montreal: LexisNexis Canada, 2015). 56 See Patrick Daillier, Mathias Forteau, and Alain Pellet, Nguyen Quoc Dinh: droit international public, 8th edn (Paris: LGDJ, 2009), 111. 57 His main work: Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (London: Pickering, 1823). 58 His main work: John Austin, The Province of Jurisprudence Determined; and The Uses of the Study of Jurisprudence (London: John Murray, 1832). 59 His main work: Georg Jellinek, Die rechtliche Natur der Staatenverträge: Ein Beitrag zur juristischen Construction des Völkerrechts (Vienna: Alfred Hölder, 1880).

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48 Stéphane Beaulac Heinrich Triepel,60 as well as Italian publicists such as Dionisio Anzilotti61 and Arrigo Cavaglieri.62 But since this chapter is not about international legal theory, p ositivism will not be examined in detail.63 Suffice it to highlight what is relevant for the law of jurisdiction and, more specifically, for the proper—non-anachronistic—discussion of the Lotus case that follows. Just like legal positivism in domestic law holds that the law is set by men for men, international positivism proposes that international law set by states for states.64 Viewed in this way, of course, international normativity is concerned with regulating the relations and affairs between states; in fact, the whole legal construction is set out for states, which are the primary (formerly the sole) subjects of the system.65 As Lassa Oppenheim wrote in early twentieth century: ‘The Law of Nations is a law for the intercourse of States with one another’; further, ‘[a]s, however, there cannot be a sovereign authority above the several sovereign States, the Law of Nations is a law between, not above, the several States’.66 In the international positivist understanding, states enjoy unrestricted authority and freedom on the international plane, which flows from their statehood status and as an ontological consequence of (external) sovereignty. ‘Consequently, positivism emphasises individual state will as the sole source of legal principles of their authority.’67 Even today, as Alain Pellet put it, ‘where there is State will, there is international law: no will, no law’.68 At the time the Lotus case was decided: ‘Practically all the text-writers define[d] international law in such a way as to express the idea that it is an evolving body of rules and principles, prescribing the rights and duties of states, based on agreement or consent.’69 As the basis of international normativity is the will of sovereign states, the sources of law must point to facts, empirically provable, constituting actual acceptance 60 His main work: Heinrich Triepel, Völkerrecht und Landesrecht (Leipzig: Hirschfeld, 1899). 61 His main work: Dionisio Anzilotti, Corso di diritto internazionale, 2 vols. (Padua: Cedam, 1928). 62 His main work: Arrigo Cavaglieri, Lezioni di diritto internazionale (Naples: Rondinella, 1934). See also Arrigo Cavaglieri, ‘La conception positive de la société internationale’, Revue générale de droit international public 18 (1911): 259. 63 For more detail, see Mónica García-Salmones Rovira, The Project of Positivism in International Law (Oxford: Oxford University Press, 2013); and Awalou Ouedraogo, ‘Le positivisme en droit international: fondement épistémologique d’un paradigme mécaniciste’, Revue générale de droit 40 (2010): 505. 64 See Stephen Hall, ‘The Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism’, European Journal of International Law 12 (2001): 269, 279. 65 See Janne Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law (The Hague: TMC Asser Press, 2004). 66 Lassa Oppenheim, International Law: A Treatise, I: Peace (London: Longmans, Green, 1905), 4. 67 Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Year Book of International Law 84 (2014): 187, 192. 68 Alain Pellet, ‘The Normative Dilemma: Will and Consent in International Law-Making’, Australian Year Book of International Law 12 (1988–9): 22, 22. See also Bruno Simma and Andras L. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in International Conflicts: A Positivist View’, American Journal of International Law 93 (1999): 302, 304. 69 George W. Berge, ‘The Case of the SS Lotus’, Michigan Law Review 26 (1928): 362, 376–7 (footnotes omitted).

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The Lotus Case in Context 49 by them of the legal rules. ‘Of such facts there are only two’,70 explained Lassa Oppenheim. Hence the sources of international law are twofold: ‘(1) express consent, which is given when States conclude a treaty stipulating certain rules for the future international conduct of the parties; (2) tacit consent, which is given through States having adopted the custom of submitting to certain rules of international conduct’.71 As we know, in 1920, Article 38 of the Statute of the Permanent Court of International Justice—reiterated in Article 38(1) of the Statute of the International Court of Justice (ICJ), in 1945—added other elements to the (non-exhaustive) list, though customs and treaties have remained the core formal sources, firmly grounded in positivism and the voluntarist theory of international law. * * * The Lotus case was brought before the PCIJ, as per a compromis agreed upon by France and Turkey, the main issue being whether the latter violated international law in exercising criminal jurisdiction against a French national. The domestic court proceedings at issue related to a collision on the high seas (in the Aegean, near Mitylene) between a French steamer, the SS Lotus, and a Turkish collier ship, the Boz-Kourt, which was split in two and sank, killing eight crew members. After assisting and taking the survivors on board, the SS Lotus continued on its journey to Constantinople (Istanbul), her next port of call, where the commanding officers of both vessels were interrogated by Turkish authorities and, ultimately, placed under arrest and charged with involuntary manslaughter, pursuant to Article 6 of the Turkish Penal Code.72 They were found guilty and, despite objections that Turkey had no criminal jurisdiction,73 French Lieutenant Demons was sentenced to imprisonment and to pay a fine.74 Before, during, and after the court proceedings,75 the French government protested vehemently and made forceful diplomatic representations,76 requesting their national be transferred from Turkey’s to France’s judicial system. While the domestic judgment was under appeal, the two governments struck a special agreement to submit the international affair to the PCIJ: to decide whether, in exercising judicial competence over Lieutenant Demons, Turkey ‘acted in conflict with the principles of international law’ (in French, ‘agi en contradiction des principes du droit international’). In the end, the international adjudication was split 6–6, the casting vote of the president being

70 Oppenheim (n. 66), 21. 71 Ibid., 22 (italics in original). 72 See Lotus case (n. 1), 14. 73 See William E. Beckett, ‘Criminal Jurisdiction over Foreigners: The Franconia and the Lotus’, British Year Book of International Law 8 (1927): 108. 74 See Robert Ruzé, ‘L’Affaire du “Lotus”’, Revue de droit international et de législation comparée 55 (1928): 124. 75 See Jan H. W. Verzijl, ‘L’Affaire du “Lotus” devant la Cour permanente de justice internationale’, Revue de droit international et de législation comparée 55 (1928): 1. 76 See John Fischer Williams, ‘L’Affaire du “Lotus”’, Revue générale de droit international public 35 (1928): 361, 362.

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50 Stéphane Beaulac decisive,77 holding that Turkey had jurisdiction over the French national in the present circumstances and that, as a consequence, there was no violation of international law. An author noted that it was, certainly, ‘the first decision of the Court on what may be said to be a question of general international law’,78 specifically regarding state jurisdiction. Leaving aside issues of treaty interpretation—Convention of Lausanne (1924), Article 15: ‘principles of international law’—and of preparatory work, the PCIJ focused on a question of principle, going at the heart of public international law. It was clearly set out by the respective party positions: while France argued that state competence had to be permitted by a rule of international law, Turkey’s pretention was to the effect that it could exercise its jurisdiction unless there was a prohibition on the international plane. In short, is international normativity permissive or prohibitive: ‘This way of stating the question’, wrote the Court, is ‘dictated by the very nature and existing conditions of international law.’79 Then, the famous dictum reads: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.80

In the case at hand, the majority of the PCIJ was of the view that there was no prohibitive rule preventing Turkey from exercising jurisdiction for a collision on the high seas. Going back to the judicial teachings on the law of jurisdiction and, generally, on the status of international law, the above statement is said to be qualified, indeed nuanced by what follows immediately after. In the next paragraph, the majority of the PCIJ wrote: Now the first and foremost restriction imposed by international law upon a state is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.81

Accordingly, the initial statement that international normativity, in effect, acts to impose restrictions on what states can do, including in regard to their jurisdiction, and that such limitations cannot be presumed given their sovereignty, may be less far reaching than it seems at first blush. Here, in fact, there would be an inherent restriction on

77 This is a feature of the judgment that some have highlighted, undermining its authority: see James L. Brierly, ‘The “Lotus” Case’, Law Quarterly Review 44 (1928): 154, 155. 78 Alexander P. Fachiri, ‘The Case of the Lotus’, British Year Book of International Law 9 (1928): 131, 131. 79 Lotus case (n. 1), 18. 80 Ibid. (emphasis added). 81 Ibid., 18–19 (emphasis added).

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The Lotus Case in Context 51 the exercise of jurisdiction, namely territoriality.82 To put it simply, the exercise of jurisdiction by one state cannot infringe upon the territorial sovereignty of another state; this is, indeed, a sort of overarching prohibitive rule in international law, regarding state jurisdiction. There is a third (somewhat long) excerpt from the PCIJ majority judgment worth reproducing in full. To appreciate it, though, one must recall the distinction—seen in the introduction—between prescriptive, enforcement, and adjudicative jurisdiction (although an anachronism, admittedly). The passage reads thus: It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules.83

Is this an exception to the exception (to the restriction), bringing us back to the original idea of unlimited jurisdiction, as justified by state sovereignty? Or is it a qualification of the general prohibitive rule, circumventing the scope of application of territoriality only to enforcement jurisdiction, all in the spirit of territorial sovereignty? The latter understanding, as many contemporary publicists highlight,84 seems to be well founded. The answer comes from the key phrase in the second excerpt, which I emphasized, namely that a state cannot ‘exercise its power’ extraterritorially, which must be limited to enforcement jurisdiction. State power cannot be used to enforce legal rules outside its territory; the coercive force of a state—the police or the military—cannot be exercised on the territory of another state. As Cedric Ryngaert put it, ‘the contrary would mean shattering the sacrosanct principle of sovereign equality of nations’. Accordingly, the general ban in international law, alluded to by the PCIJ in the second excerpt, is on extraterritorial enforcement jurisdiction, not extraterritorial prescriptive jurisdiction or extraterritorial adjudicative jurisdiction. As far as prescriptive jurisdiction is concerned, so long as no enforcement is involved, sovereign states may have legislation that reaches outside its territory. As per the fundamental idea of sovereignty (‘independence’), as well as positivism and the voluntarily thesis (‘own free will’), 82 See An Hertongen, ‘Letting Lotus Bloom’, European Journal of International Law 26 (2015): 901, 907. 83 Lotus case (n. 1), 19 (emphasis added). 84 See e.g. Cedric Ryngaert, Jurisdiction in International Law, 2nd edn (Oxford: Oxford University Press, 2015), 31.

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52 Stéphane Beaulac underscored in the first excerpt, international law leaves ‘a large measure of discretion’ for prescriptive jurisdiction (only constrained by certain ‘prohibitive rules’), as the PCIJ suggested in the third excerpt. With regard to the actual dispute in the Lotus case, a wide prescriptive jurisdiction meant that Turkish criminal law could apply extraterritorially. Indeed, the majority held that ‘the territoriality of criminal law . . . is not an absolute principle of international law and by no means coincides with territorial sovereignty’.85 More importantly, given that ‘what occurs on board a vessel on the high seas must be regarded as if it occurred on the territory of the State whose flag the ship flies’,86 it meant that Lieutenant Demons’s crime was actually linked to the territory of Turkey, pursuant to the doctrine of effects.87 ‘If ’, as it was put, ‘a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the t erritories of two different States were concerned.’88 Referring to both prescriptive and adjudicative jurisdiction, the majority concluded that, ‘there is no rule of international law prohibiting the State to which the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent’.89 Thus the majority answered the question on the basis of objective territorial jurisdiction,90 tossing aside the passive personality principle.91 In the end, instead of exclusive competence as argued by France, jurisdiction was held to be concurrent between the two states involved. Since the question at issue is not whether states need a permissive rule to exercise prescriptive or adjudicative jurisdiction and because there is no prohibitive rule in international law in that regard,92 Turkey could exercise its legal competence, on the basis of territoriality, over the French national in the circumstances of the present case, just like France could have done, too. More broadly in terms of state interests, the majority opined that concurrent jurisdiction was warranted because, ‘neither the exclusive jurisdiction of either State, nor the limitations of the jurisdiction of each to the occurrences which took place on the respective ships would appear calculated to satisfy the requirements of justice and effectively to protect the interests of the two States’.93 As a consequence: ‘It is natural that each should be able to exercise jurisdiction and to do so in respect of the incident as a whole.’94 * * * There were six judges dissenting in the Lotus case split judgment, decided by the casting vote of President Huber. The most significant is Judge Loder’s dissenting opinion 85 Lotus case (n. 1), 20. 86 Ibid., 25. 87 See Cedric Ryngaert, ‘Territorial Jurisdiction over Cross-Frontier Offences: Revisiting a Classic Problem of International Criminal Law’, International Criminal Law Review 9 (2009): 187. See also Akehurst (n. 5), 152–3. 88 Lotus case (n. 1), 25. 89 Ibid. 90 Generally, on objective territoriality and subjective territoriality, see Robert J. Currie, International and Transnational Criminal Law (Toronto: Irwin Law, 2010), 62–4. 91 Lotus case (n. 1), 22–3. 92 Ibid., 30. 93 Ibid. 94 Ibid., 30–1.

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The Lotus Case in Context 53 because, in a way, it summed up in a catchy phrase what the majority actually did in the case. Considering Turkey’s argument, which indeed was endorsed by the majority of the Court, he wrote that: ‘the contention [is] that under international law everything which is not prohibited is permitted. In other words, . . . under international law, every door is open unless it is closed by treaty or by established custom’.95 Generally on the nature of international law, in agreement with the majority it seems, Judge Loder characterized it in positivistic terms: ‘This law is for the most part unwritten and lacks sanctions; it rests on a general consensus of opinion; on the acceptance by civilized States, members of the great community, of nations.’96 Such normativity, he further wrote, is made ‘of rules, customs and existing conditions which they [States] are bound to respect in their mutual relations, although neither committed to writing nor confirmed by conventions’.97 Dissenting Judge Weiss understood the approach favoured by the PCIJ majority in the following way: ‘[Turkey] can do as she thinks fit as regards persons or things unless a specific provision in a treaty or an established custom in international law prevents her from so doing.’98 Alluding to the voluntarist theory of international law and referring, by name, to the notion of sovereignty, he pointed out that: ‘This power is thus in its essence unlimited.’99 As for dissenting Judge Nyholm, he was highly critical of the majority’s opinion as well, suggesting that it showed, ‘a confusion of ideas’.100 He noted that: ‘If this reasoning be followed out, a principle of public international law is set up that where there is no special rule, absolute freedoms must exist.’101 For Judge Nyhold, the present situation is one where, on the facts of the case, there is no specific rule of international law; however, this is different from that suggesting that, as a general position, international normativity acts by means of prohibitive rules.102 Accordingly, it is fair to say that the dissenting judges, ‘interpreted the dictum that became the Lotus principle as applicable beyond the facts of the case—an attempt by the Court to articulate a general principle of international law that governs a situation where no applicable law constraining state behavior can be discerned’.103 * * * Already in the immediate aftermath of the Lotus case, the raw positivistic feature of the PCIJ majority’s dictum was highlighted by international publicists. John Fischer Williams thought that ‘the statement was an extreme form of positivism’ (‘l’énoncé de la

95 Ibid., 34 (Judge Loder’s dissent). 96 Ibid. 97 Ibid. 98 Ibid., 42 (Judge Weiss’s dissent). 99 Ibid. 100 Ibid., 60 (Judge Nyholm’s dissent). 101 Ibid. 102 Ibid., 60–1 (Judge Nyholm’s dissent). 103 Hugh Handeyside, ‘The Lotus Principle of ICJ Jurisprudence: Was the Ship Ever Afloat?’, Michigan Journal of International Law 29 (2007): 71, 76. See also Ruzé (n. 74), 149–50: ‘[L]a Cour [a] posé et résolu le problème sur le terrain très général de la souveraineté territoriale des États. Ce faisant, il semble qu’elle ait déplacé la question, qu’elle l’ait enlevée à son cadre véritable, dans lequel seul elle était capable de recevoir une solution satisfaisante.’

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54 Stéphane Beaulac doctrine positiviste extrême’104). In an article actually entitled, ‘L’Arrêt du “Lotus” et le positivisme juridique’,105 in 1930, the author analysed the judgment and cited classic German and Italian theorists of legal positivism in international law, mentioned earlier, like Henrich Triepel, Arrigo Cavaglieri, and Dionisio Anzilotti; interestingly, as he noted, the latter was one of the judges of the PCIJ majority in the Lotus case. Referring to the famous dictum, the French author suggested that sovereignty was the keystone, or the cornerstone, of the positivist theory of international law (‘la clef de voûte de la théorie positiviste. [Elle est] grosse de conséquences pour la conception du droit et de la Société internationale’106). Borrowing from the terminology of the majority in the Lotus case, in line with international positivism, whereby sovereignty means the independence, states are said to be free to create normativity at their will, to decide to submit themselves, or to choose not to be bound by legal rules.107 Publicists, then and now, are unequivocal: ‘Lotus has long been considered the touchstone of international legal positivism’;108 Louis Henkin considered the PCIJ case as ‘one of the landmarks of the twentieth-century jurisprudence’.109 But having said that, it is also true that ‘international lawyers have had a love–hate relationship with the Lotus principle’.110 Far from being a novel criticism,111 the Lotus case positivist and voluntarist take on international law has long been seen by some as retrograde,112 by others grossly overrated;113 the proposition is said to be outdated and surely irreconcilable with late twentieth- and early twenty-first-century dominant understanding of international law.114

104 Fischer Williams (n. 76), 16. 105 Louis Cavaré, ‘L’Arrêt du “Lotus” et le positivisme juridique’, Travaux juridiques et économiques de l’Université de Rennes 10 (1930): 144; in English, ‘the keystone of the positivist theory. [It is] of huge consequences for our conception of international society’ (my translation). 106 Ibid., 172. 107 Ibid.: ‘La règle essentielle dans cette Société est l’indépendance de l’État, libre de créer à sa guise le droit, de se lier comme il le veut ou de ne pas se lier par des règles juridiques.’ 108 Handeyside (n. 103), 71. 109 Louis Henkin, ‘International Law: Politics, Values and Functions’, Hague Recueil 216 (1989–IV): 9, 278. 110 Hertongen (n. 82), 902. 111 See H. Arthur Steiner, ‘Fundamental Conceptions of International Law in the Jurisprudence of the Permanent Court of International Justice’, American Journal of International Law 30 (1936): 414, 416. 112 See Mann (n. 8), 35. 113 See Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994), 77. 114 See Ole Spiermann, International Legal Argument in the Permanent Court of International Justice: The Rise of International Judiciary (Cambridge: Cambridge University Press, 2004), 249. See also Ole Spiermann, ‘Lotus and the Double Structure of International Legal Argument’, in Laurence Boisson de Chazournes and Philippe Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons (Cambridge: Cambridge University Press, 1999), 131.

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The Lotus Case in Context 55

IV. Conclusion: Impact of the Lotus Case Beside and beyond these grandiose and harsh doctrinal critics of the Lotus case, what is the real legacy of this major decision of the World Court? In the conclusion, it is worth coming back to the impact of the PCIJ’s majority opinion on the law of jurisdiction, especially on the jurisprudence of the ICJ. Of course, technically, there is no stare decisis in international law—as per Article 59 of the Statute of the International Court of Justice—precedents being a subsidiary source of international normativity;115 they may nevertheless be highly valuable in understanding the law, here on state jurisdiction. Strictly speaking, ICJ references to the Lotus case in judgments on the merits are very few indeed; three instances are the North Sea Continental Shelf cases,116 the Nicaragua case,117 and the Nuclear Weapons opinion.118 In the first two cases, recourse to the 1927 PCIJ case was on secondary points (proof of customary law; jura novit curia rule); only the latter ICJ case refers to the Lotus principle on sovereignty (and jurisdiction) and how it relates to the nature of international normativity. Indeed, the Nuclear Weapons opinion saw the ICJ refer to the Lotus dictum thus: ‘ “restrictions upon the independence of States cannot . . . be presumed” and that international law leaves to States “a wide measure of discretion which is only limited in certain cases by prohibitive rules” ’.119 The Court acknowledged also that the Lotus principle was argued along with a similar point made in the Nicaragua case.120 In the end, the majority in the Nuclear Weapons opinion was based on, ‘the basic premises of the Lotus principle—that is, it queried whether international law contained a specific prohibition on the threat or use of nuclear weapons’.121

115 See, generally, Mohamed Shahabuddeen, Precedent in the World Court (Cambridge: Cambridge University Press, 1996). See also Yonotan Oupu and Erik Voeten, ‘Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights’, British Journal of Political Science 42 (2011): 413. 116 North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherland), Judgment [1969] ICJ Rep. 3, 44. 117 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment [1986] ICJ Rep. 14, 24 (the ‘Nicaragua case’). 118 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep. 226, 238–9 (the ‘Nuclear Weapons opinion’). 119 Ibid., 238; citing the Lotus case (n. 1), 18 and 19. 120 Nuclear Weapons opinion (n. 118), 238–9; citing the Nicaragua case (n. 117), 135: ‘in international law there are no rules, other than such rules as may be accepted by State concerned, by treaty or otherwise, whereby the level of armaments of a sovereignty State can be limited’. On the issue of jurisdiction, the ICJ had written earlier in the judgment, ibid., 131: ‘A State’s domestic policy falls within its exclusive jurisdiction, provided of course that it does not violate any obligation of international law.’ 121 Handeyside (n. 103), 87.

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56 Stéphane Beaulac President Bedjaoui made a declaration in the Nuclear Weapons opinion, placing the Lotus case in its ‘particular context, both judicial and temporal’.122 ‘No doubt, this decision expressed the spirit of the times’, he wrote, ‘the spirit of an international society which as yet had few institutions and was governed by an international law of strict coexistence, itself a reflection of the vigour of the principle of State sovereignty’.123 He referred to the ‘resolutely positivist, voluntarist approach of international law’, at the PCIJ in 1927, which ‘has been replaced by an objective conception of international law’.124 Dissenting Judge Weeramantry, in the Nuclear Weapons opinion, wrote that an interpretation of the Lotus case, ‘to the effect that a State could do whatever is pleased so long as it had not bound itself to the contrary’, indeed, ‘would cast a baneful spell on the progressive development of international law’.125 Those additional statements by ICJ judges show how the sovereigntist/positivist/voluntarist approach to international law in general and, insofar as issues of state jurisdiction are concerned as well, remains highly contested. More interesting, perhaps, than the verbatim citation of the Lotus case, by name, is the fundamental idea that it represents, based on the sacrosanct notion of sovereignty, and what it means for territorial competence, as well as territoriality at large as the basis for state jurisdiction. In 1949, for instance, in the Corfu Channel case,126 the aura of the Lotus case dictum, is found in this statement by the ICJ: ‘Between independent States, respect for territorial sovereignty is an essential foundation of international relations.’127 More broadly for the normative system, the Lotus principle stands for the proposition that everything that is not prohibited by international law is, in fact, permitted for sovereignty states. Similar to what it did in the Nuclear Weapons opinion—looking for a prohibition, imposed by international law, when assessing the legality of the threat or use of nuclear weapons—the ICJ followed the Lotus principle in the Kosovo opinion.128 The question at issue, as interpreted by the Court,129 was narrowed down and, in the end, was addressed using a logic emphasizing international law as a system permitting everything that is not prohibited. Contrasting the situation at hand with the Quebec Secession case130—decided by the Supreme Court of Canada, in 1998—the ICJ in that case deemed that the actual issue was not about whether Kosovo had a right, under international law, to effect secession by means of a unilateral declaration of independence. Rather, ‘the General Assembly has asked whether the declaration of independence was “in accordance with” international law’.131 Similar to what the PCIJ majority dictum held, the ICJ in the Kosovo 122 Nuclear Weapons opinion (n. 118), 270 (President Bedjaoui’s declaration). 123 Ibid., 270 (President Bedjaoui’s declaration) (emphasis in original). 124 Ibid., 270–1 (President Bedjaoui’s declaration). 125 Ibid., 495 (Judge Weeramantry’s dissent). 126 Corfu Channel (United Kingdom v Albania), Merits, ICJ Rep. 4. 127 Ibid., 35. 128 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion [2010] ICJ Rep. 403 (the ‘Kosovo opinion’). 129 See Frédéric Bérard and Stéphane Beaulac, The Law of Independence: Quebec, Montenegro, Kosovo, Scotland, Catalonia (Toronto: LexisNexis Canada, 2017), 97. 130 Reference re Secesssion of Quebec [1998] 2 Supreme Court Report 217. 131 Kosovo opinion (n. 128), 425.

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The Lotus Case in Context 57 opinion reiterated the positivist and voluntarist view of international normativity, acting to limit sovereignty, by prohibiting what can be done on the international plane. It held, unequivocally: ‘The answer to that question turns on whether or not the applicable international law prohibited the declaration of independence.’132 This approach was criticized by Judge Simma, who made a declaration in the Kosovo opinion, because the majority’s reasoning, ‘leaping as it does straight from the lack of a prohibition to permissibility, is a straightforward application of the so-called Lotus principle’.133 Putting the issue in both historical and theoretical context—as this chapter attempts to do—he wrote: ‘By reverting to [the Lotus principle], the Court answers the question in a manner redolent of nineteenth-century positivism, with its excessively deferential approach to State consent.’134 Drawing from the way the Lotus case has been condemned by many over the years, Judge Simma summed up the whole problem thus: ‘Under this approach, everything which is not expressly prohibited carries with it the same colour of legality.’135 Closing this survey of ICJ jurisprudence, the most recent opportunity to speak on the Lotus case was the Arrest Warrant case,136 though only in particular opinions, not in the main judgment. For instance, in a joint separate opinion, Judges Higgins, Kooijmans, and Buergenthal expressed the view that the Lotus case ‘represents the high water mark of laissez-faire in international relations, and an era that has been significantly overtaken by other tendencies’.137 Dissenting Judge van den Wyngaert, for her part, also opined in critical terms: ‘It has often been argued, not without reason, that the “Lotus” test is too liberal and that, given the growing complexity of contemporary international intercourse, a more restrictive approach should be adopted today.’138 * * * So this is the current situation, with the heritage left by the Lotus case, at least in ICJ’s jurisprudence. Wrapping it up and putting it directly in terms of state jurisdiction,139 one cannot but appreciate how these issues, as well as the law governing them, continue to be intellectually apprehended and legally addressed, it seems, using the (still) dominant epistemology of legal positivism. At the heart of this understanding of the legal world, no doubt, continue to be the idée-force of sovereignty, as well as the Westphalian paradigm of international relations, in turn articulated in terms of the Vattelian legal structure and the voluntarist thesis of international normativity.

132 Ibid. (emphasis added). 133 Ibid., 480 (Judge Simma’s declaration). 134 Ibid. 135 Ibid. 136 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), Judgment [2002] ICJ Rep. 3 (the ‘Arrest Warrant case’). 137 Ibid., 78 (judges Higgins, Kooijmans and Buergenthal’s joint separate opinion). 138 Ibid., 169 (Judge van den Wyngaert’s dissent). 139 See, generally, Steve Coughlan, Robert J. Currie, Hugh M. Kindred, and Teresa Scassa, Law Beyond Borders: Extraterritorial Jurisdiction in an Age of Globalization (Toronto: Irwin Law, 2014), 4.

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58 Stéphane Beaulac It was true in 1927, at the time of the PCIJ’s judgment.140 Today, it appears that this analytical framework is alive and strong, for some, but also the lingering conception of international law to be got rid of, for others. Specifically, for issues of state jurisdiction, the Lotus case was deemed the counter-intuitive approach—emphasizing the sovereignty of states and requiring prohibitive rules to constrain it—very early on indeed. One will recall how, as early as 1935, the Harvard Research on International Law had suggested, in a Draft Convention on Jurisdiction with Respect to Crime,141 a more restrictive approach which, generally, required permissive rules for sovereign states to exercise competence, be it prescriptive, enforcement, or adjudicative. This dichotomy—prohibitive rules versus permissive rules—remains at the centre of the problematics of state jurisdiction, almost a century later.142 As they say in Saint-Louis-du-Ha!-Ha! (Quebec): ‘Plus ça change, plus c’est pareil’. 140 See Cavaré (n. 105), 183. 141 Harvard Research on International Law, ‘Draft Convention on Jurisdiction with Respect to Crime’, American Journal of International Law 29 (1935): 439. 142 In a recent book (2015), an author started his core chapter on jurisdiction thus: ‘Under public international law, two approaches [prohibitive rules or permissive rules] could logically be taken to the question of jurisdiction . . . It is unclear which doctrine has the upper hand.’ See Ryngaert (n. 84), 29.

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Chapter 4

The Eu ropea n Concept of J u r isdiction i n the Col on ie s Nurfadzilah Yahaya

I. Introduction

60

II. Export of Westphalian Sovereignty

61

III. Religious Jurisdictions

64

IV. Modern Imperial Jurisdictions

65

V. Extraterritoriality

69

VI. The Spanish Concept of Jurisdiction

72

VII. The British Empire

74

VIII. The French Concept of Jurisdiction

76

IX. Dutch Colonialism

78

X. Postcolonial Legacy

79

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60 Nurfadzilah Yahaya

I. Introduction The concept of jurisdiction became much more complicated during the nineteenth century as most of the world fell under European colonial jurisdiction. Through colonial dominance in various manifestations, territorial sovereignty was imposed on many parts of the world. From 1648 onwards, when the notion was established in Europe by the Peace of Westphalia, each state had sovereignty over its territory and domestic affairs to the exclusion of all other states. Prior to this, potentially universal entities governed most legal jurisdictions bounded by religious and cultural a ffinities. Of course, these changes were cumulative across centuries and did not appear out of thin air. Although this chapter focuses on the nineteenth century, the history of the European concept of jurisdiction in the colonies is in fact a long one beginning in the fifteenth century. The long view is necessary because European colonial powers shared conceptions of jurisdiction with each other. Throughout the world, a sharper sense of the absolute character of the legislative power was formed in all jurisdictions.1 The Spanish and Portuguese concept of jurisdiction based on religious difference influenced later imperialists. In the Spanish Requirement of 1513 (Requerimiento), King Ferdinand of Spain declared that: [o]f all these nations God our Lord gave charge to one man, called St. Peter, that he should be lord and superior of all the men in the world, that all should obey him, and that he should be the head of the whole human race, wherever men should live, and under whatever law, sect, or belief they should be; and he gave him the world for his kingdom and jurisdiction.2

Although Native Americans in the New World were recognized as human beings, and as people who had dominion over their property, the above quote implies that religion could easily be mobilized by Europeans in North America to seize property and land held by Native Americans. After all, the Spanish ruling elite did not conceive of the Native Americans as being equal to Christians in the first place. They believed that the pope had universal jurisdiction by virtue of his divine mission to spread Christianity. Following this, it is legally permissible for a European sovereign to expand Christianity by military conquest if such mission is sanctioned by the head of the Church although this policy met with criticism from legal philosophers such as Francesco de Vitoria.3

1 P. G. McHugh, Aboriginal Sovereignty and Status in the ‘Empire(s) of Uniformity’ (New York: Oxford University Press, 2004), 107. 2 Kenneth L. Karst and Keith S. Rosenn, Law and Development in Latin America (Berkeley: University of California Press, 1975), 32. 3 Francisco de Vitoria, ‘On the Law of War’, in Anthony Pagden and Jeremy Lawrance (eds.), Vitoria: Political Writings, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1991), 293–328.

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The European Concept of Jurisdiction in the Colonies 61 By the early nineteenth century, distinctions between Christian and non-Christian peoples were downplayed. From the early seventeenth century onwards, Alberico Gentili’s texts formed the foundation of international law and concept of jurisdictions, but colonial jurisdiction was influenced more by Dutch jurist Hugo Grotius who built on Justinian’s Institutes and Gentili’s discussions in War and Peace to challenge British and Spanish claims to exclusivity in the Atlantic and, in the process, made several claims for Dutch privileges. In Mare Liberum, Grotius specifically argued that since the seas were open to all according to the law of nations, and were not subject to appropriation by persons or states, neither Portugal nor any other nation could have exclusive rights of navigation whether through seizure, papal grant, prescription, or custom.4 He maintained that no people could acquire a monopoly on commerce with any overseas country. The main impetus for the publication of Grotius’s Mare Liberum was the Dutch seizure of a Portuguese carrack that was listing off the coast of Singapore.5 Grotius undermined Portuguese and Spanish claims to exclusivity in the realm of legal jurisdiction on the basis of conquest, terra nullius, and papal donation. The power of the latter in the Indian Ocean began to ebb while Dutch and British dominance began to increase.

II. Export of Westphalian Sovereignty Although each rendition of the intertwined ideas of sovereignty and jurisdiction at a particular time and place might be different, it was certainly influenced by earlier iterations in the same location and elsewhere. For example, from the late eighteenth century onwards British and French colonialists both built on and challenged the earlier Spanish and Portuguese model of jurisdiction. In many territories, the influence of Roman law especially through the Justinian code suffused nearly all narratives of European imperialism and colonialism. The notion of the ‘Law of the World’ was another persistent element from the time of the ancient Roman Empire.6 In other words, successive colonial legacies shade into another and build upon each other. One thing for sure, all European conceptions of jurisdiction in the colonies were markedly different from the ones in Europe. This was not surprising since the rationale for conquest was specifically to subjugate peoples and exploit resources, and not to create citizens. The concept of Westphalian sovereignty did not fully extend to the colonies, if at all. 4 Hugo Grotius and Robert Feenstra, Mare Liberum, 1609–2009 (Leiden: Brill, 2009). 5 Hugo Grotius and Martinev can Ittersum, Commentary on the Law of Prize and Booty (Indianapolis: Liberty Fund, 2006). 6 Martti Koskoniemmi, ‘Introduction: International Law and Empire: Aspects and Approaches’, in Martti Koskeniemmi, Walter Rech, and Manuel Jimenez Fonseca (eds.), International Law and Empire: History and Theory of International Law (Oxford: Oxford University Press, 2017), 6.

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62 Nurfadzilah Yahaya The state became the public entity and exclusive holder of sovereignty without granting equal citizenship rights to colonial subjects within its borders. By extension, only states can extend and recognize jurisdictions, and in the colonies this was done at the expense of older entities deprived of sovereignty. European concepts of jurisdiction were so pervasive that even adjacent territories which were not formally colonized, such as Turkey, Siam, and China, were affected by European legal principles by the end of the nineteenth century. Historian Thongchai Winichakul has established that even Siam, which was not formally colonized by European powers, had to respect the borders of British and French territories to its south and east.7 Moreover, Turkey and Japan enacted legal reforms according to European standards in the nineteenth century. Through the nineteenth century, the scale of European-style jurisdictions became much greater than before in line with heightened colonial ambitions spurred by technological change that allowed for ease of travel, greater distances to be traversed in a shorter time, and speedier communications. Compared to previous centuries, the nineteenth century was an age of avid acquisition of territory at an accelerated pace, the solidifying of territorial borders, and the entrenchment of colonial bureaucracy as spotty mercantilist interventions by chartered companies such as the English East India Company and the Dutch East India Company moved towards more systematic imperial expansion helmed by colonial governments. State legal hegemony became an achievable aim during this period. Yet, a verbal declaration of legal jurisdiction was sometimes the only claim to sovereignty over a particular territory rather than actual physical occupation which followed conquest. It was only at the Congress of Berlin (1884–5) that various European powers agreed that ‘effective occupation’ should henceforth become the standard for actual jurisdiction. The Congress was a culmination of European control that paved the way for the partitioning of Africa over the next three decades.8 This also meant that the logic of colonial state formation resembles a ‘chicken and egg’ situation. Which came first—actual territorial usurpation, declaration of sovereignty, or declaration of jurisdiction? The question of jurisdiction, Nan Seuffert writes, involves the determination of the territorial boundaries of law.9 Territorial boundaries were not demarcated throughout most of the world. Previously, territories were not even bounded, and borders and zones often shifted according to the political ambitions and capabilities of ruling elites. Indeed, the general arc of the history of jurisdictions during the nineteenth and twentieth centuries points towards dispossession of non-European legal authorities throughout the world. The starkest example of this phenomenon would be the swift colonization of Africa in the closing decades of the nineteenth century right up to the 7 Thongchai Winichakul, Siam Mapped: A History of the Geo-Body of a Nation (Honolulu: Hawaii University Press, 1994). 8 Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (New York: Cambridge University Press, 2004), 91. 9 Nan Seuffert, ‘Jurisdiction and Nation-Building: Tall Tales in Nineteenth-Century Aotearoa/New Zealand’, in Shaun Mcveigh (ed.), Jurisprudence of Jurisdiction (London: Routledge, 2016), 102.

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The European Concept of Jurisdiction in the Colonies 63 First World War in 1914, more commonly and crudely known as the ‘scramble for Africa’. European powers—Britain, France, Portugal, Spain, and Italy—avidly pursued new markets, enabled by new diplomacy amongst themselves, technological advancements in weapons, and transport. The concept of sovereignty, which is tied to jurisdiction, acquired a different form when it was transferred from the European to the non-European world because European jurisdictions spread to the great majority of the world in an asymmetric power arrangement despite a lack of specific colonial agendas by any European country.10 In the vast majority of countries around the world, external frontiers vis-à-vis neighbours appeared before the internal frontiers of occupation were actually integrated and possessed.11 Usually, territory was conquered before peoples were subjugated. Claims of sovereignty were swiftly made through military conquests and treaties rather than negotiation over centuries of movement, compromise, collaboration, and accommodation as was the case in most of Europe. Hence, more ‘artificial’ divisions emerged in nineteenth century outside of Europe in this way, with jurisdictions arbitrarily declared and sustained simply because the monopoly of force lay in the hands of the colonial elite who conquered territories to declare it their own. Because colonialism was by definition coercive and non-consensual, law was unilaterally introduced from above by force and tied to possession on a large scale throughout the world. Normative law associated with colonial states spawned various questions that needed to be resolved. No longer were territorial disputes subjected to negotiation, or as something to be worked out in particular legal tribunals or courts. Jurisdictions were now imposed from the outset. European colonialism transformed this phenomenon by establishing the use of legal courts which lie in specific jurisdictions. Bringing a case to a tribunal or court meant submitting to the particular jurisdiction that the court was already firmly a part of because courts’ jurisdictions were predetermined by its territorial jurisdiction.12 Law had always been jurisdiction-specific but now jurisdictions were territorially bound. Previously, people involved in legal disputes could cite a plethora of sources including divine precepts, natural law, as well as various long-held customs and traditions to settle disputes without necessarily restricting themselves to particular sets of laws and traditions. In other words, jurisdictional complexity or hybridity used to be the order of the day for most people.13 10 Anthony Anghie, ‘Colonialism and the Birth of International Institutions: Sovereignty, Economy, and the Mandate System of the League of Nations’, NYU Journal of International Law and Politics 513 (2001–2): 513, 520. 513. 11 Tamar Herzog, Frontiers of Possession: Spain and Portugal in Europe and the Americas (Cambridge: Harvard University Press, 2015), 4. 12 Nurfadzilah Yahaya, “Legal Pluralism and the East India Company in the Straits of Malacca, 17861821,”~Law and History Review~, 33.4 (November 2015): 945-964. 13 Maks Del Mar, ‘Beyond Universality and Particularity, Necessity and Contingency: On Collaboration between Legal Theory and Legal History’, in Maks Del Mar and Michael Lobban (eds.), Law in Theory and History: New Essays on a Neglected Dialogue (Oxford: Hart Publishing, 2016), 31.

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64 Nurfadzilah Yahaya As a result of these deeply transformative phenomena, not only did jurisdictions continue to exist on multiple scales, there were also many types of jurisdictions— political, private, fiscal, ecclesiastical, religious, military, customs, political, and sanitary. Different jurisdictions might coincide, but more often did not. Jurisdictions became more layered and composite during this era since they were simultaneously laid out geographically and hierarchically. This greatly complicated matters on a practical level. At times, sovereign power and jurisdictions were even separate in a single territory. Ecclesiastical and religious jurisdictions continued to function independently of political jurisdiction in most cases, and therefore continually challenged the latter. Even so, political authorities usually defined and circumscribed the purviews of ecclesiastical and religious jurisdictions whose influence waxed and waned according to the predilections of political rulers. In other words, these other kinds of jurisdictions were subjected to a hierarchy within which territorial and political jurisdiction were at the apex.

III. Religious Jurisdictions Not surprisingly, this arrangement was anathema to some people. Islamic jurisdictions were particularly antithetical to this. Relative to other forms of jurisdictions elsewhere, the Islamic legal system of jurisdictions was extremely clear-cut. The world was divided into two realms: ‘dar al Islam’ (abode of peace) and ‘dar al harb’ (abode of war). Within the former, Islamic legal principles—sustained by a set of shared moral principles—applied, with God as the ultimate and only sovereign. Practically speaking, the worldly ruler such as a sultan executed the will of God. In other words, Sharia referred to not only the law of the land, but also the law of the heavens and everything lying in between, including politics and rule.14 Territories where Islamic law did not apply or was not accorded priority were deemed ‘dar al harb’. The Umma (Muslim community), both as a concrete phenomenon and abstract idea, displaced the state, especially the non-Muslim colonial state. Historically, the concept of the Sharia was not mobilized to form a political legal culture. Neither did it lend itself to the construction of a state to which one is supposed to be devoted to.15 By contrast, European colonization collapsed social and religious morality in the European order of state, polity, and society. The impetus for change in the Islamic world came when European colonialists discovered that Sharia is based on prescribed notions of law without coercive measures from above, and without lawyer-judges who were subordinate to the state. Muslim judges and jurists transcended the limits of political rule and jurisdictions by discovering and articulating the law independently.16

14 Wael Hallaq, The Impossible State: Islam, Politics and the Moral Predicament (New York: Columbia University Press, 2013), 57. 15 Ibid., 308. 16 Ibid., 369–70, 373.

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The European Concept of Jurisdiction in the Colonies 65 European colonial officials therefore found the legal system in the vast majority of Muslim countries lacking especially in the area of penal offences and criminal law.17 European colonialism generally supplanted the production of law in non-Western culture. These efforts often began with denigration of non-Western laws and legal culture which were dismissed as inefficient, despotic, and uncivilized. In British India, for example, British officials described Islamic law and Hindu law as unsystematic, arbitrary, and inconsistent. They complained that Islamic law was judged on an individual basis which resulted in too many variations. In order to make non-Western law more legible for colonial administrators, lawyers and judges, non-Western law such as Islamic law and Hindu laws were codified.18 This measure was also instituted so that British colonial officials no longer needed to rely on local experts, namely the local religious legal and intellectual elite. The Islamic world experienced legislative rupture due primarily to codification which has had a deep, long-lasting impact in the world. This began with Charles Hamilton who published in 1791 his English translation of an influential twelfth-century legal manual by jurist Burhan Al-Din Marghinani, Hidaya, which became a manual of Islamic law for colonial officials.19 The most radical transformation of legal jurisdiction was the limitation of religious laws to the realm of the private as demarcated by European colonial officials. This huge phenomenon led to much soul-searching and reconceptualization of law amongst intellectual religious elites across all cultures, but religious laws which had been subordinated by colonial law never again achieved primacy like they did in the precolonial period. In addition, the artificial division between ‘public’ and ‘private’ was not always easy to identify. Aspects of property law, for example, constantly straddled the divide between the public and private. The jurisdiction of religious property, such as religious endowments, remains a puzzle to this day in several parts of the world.20

IV. Modern Imperial Jurisdictions The nineteenth century witnessed the unprecedented brazenness of European colonialists who confidently asserted jurisdiction over huge territories—even remote ones—and without contiguous borders. While colonial subjects were sometimes presented with a 17 Ibid., 309. 18 Werner Menski, Hindu Law: Beyond Tradition and Modernity (New Delhi: Oxford University Press, 2003); John Strawson, ‘Islamic Law and English Texts’, in Eve Darian-Smith and Peter Fitzpatrick (eds.), Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999); Bernard Cohn, Colonialism and its Forms of Knowledge: The British in India (Princeton: Princeton University Press 1996). 19 Charles Hamilton, The Hedaya (London: Allen, 1870). 20 Gregory C. Kozlowski, Muslim Endowments and Society in British India (New York: Cambridge University Press, 1985); Yitzhak Reiter, ‘Family Waqf Entitlements in British Palestine (1917–1948)’, Islamic Law and Society 2(3) (1995): 174–93; J. N. D. Anderson, ‘Waqfs in East Africa’, Journal of African Law 3(3) (Autumn 1959): 152–64; Norbert Oberauer, ‘Fantastic Charities: The Transformation of Waqf Practice in Colonial Zanzibar’, Islamic Law and Society 15(3) (2008): 315–70.

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66 Nurfadzilah Yahaya bewildering array of legal options, all were prescribed by colonial governments. During this period, jurisdictions united territories within empires, the most extreme being the British Empire, which held the largest territories globally, with the pink imperial map being a common graphic representation of it throughout the Commonwealth. In many ways, it was the age of extremes. Existing conventions of property and ownership in the non-Western world were overturned and more brazenly disregarded. Private property was seized and declared public for the European colonial administration to dispose of as they chose. A significant proportion of the habited world was even declared legally terra nullius in order to justify European occupation sometimes retroactively. Even in areas where such declarations were not made, such as in African countries, local claims to sovereignty and jurisdiction were ignored. Overlapping jurisdictions led to conflicts that often resulted in global violence as in the case of the Crimean War from 1853 to 1856. Although jurisdictions were declared over both populations and territorial space, by the end of the nineteenth century jurisdiction over territory generally took precedence over jurisdiction over peoples with several exceptions which complicated matters on a practical level. For example, in cases involving real estate and landed property, judges continued to waver between lex situs (law of the place in which property is situated) and lex domicilii (law of domicile). The former tended to win out, but this was rarely a foregone conclusion in courts. Moreover, as colonies became larger, things could only become more complicated. It was in the realm of jurisdiction that colonialists confronted the thorny issue of how to incorporate the many different peoples under the umbrella of their legal systems imposed on colonial subjects. The practical question of ‘who and what fell under the legal power of which body, and when’, as Lisa Ford and Lauren Benton bluntly put it, became more fraught.21 The reality was incredibly messy, not least because this was an era when new political identities were imposed on colonial subjects, and reified in law. All parties worked through all these huge changes—colonial governments and subjects alike. Special jurisdictions often followed the ‘discovery’ of indigenous peoples who were granted privileges such as the Berbers in Morocco in the early twentieth century, whose culture was pitted against Arabs and other Muslims.22 In this way, sometimes colonial subjects made a case for ethnic autonomy in order to obtain what they wanted and represent themselves as an already recognized entity—an ethnic group that deserves protection within the colony. Colonial jurisdictions were more complex, since both European colonial powers and subjects existed in a relationship that was unequal by default. Inequality within colonies existed along a wide spectrum ranging from full autonomy to strict control as colonial populations were in themselves differentiated between one another. Not surprisingly, jurisdictions were not uniformly declared, enacted, and recognized by all parties. Even colonial officials could not agree on the extent and limits of their respective 21 Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (Cambridge: Harvard University Press, 2016), 10. 22 Katherine E. Hoffman, ‘Purity and Contamination: Language Ideologies in French Colonial Native Policy in Morocco’, Comparative Studies in Society and History 50(3) (July 2008): 724–52.

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The European Concept of Jurisdiction in the Colonies 67 jurisdictions. In Australia, the Aborigines were alternately treated as within and outside British jurisdictions depending on the situation during the nineteenth century.23 European colonial jurisdiction in New Zealand was quite unique. Despite being a settler colony, the British view of Maoris as being more worthy than other indigenous populations elsewhere led to more recognition of their rights even after the Treaty of Waitangi was signed on 5 February 1840.24 Considerable weight was accorded to Maori customary practices and laws, though the English and Maori renditions of the Treaty of Waitangi have been found to be quite different especially with regards to cession of sovereignty. Because New Zealand was under British jurisdiction from 1840 onwards, the British Crown effectively owned property rights for land in New Zealand. Effectively, they owned more physical property in New Zealand than the Maoris were led to understand. Rather than casting the Treaty of Waitangi aside, Maoris have focused on challenging its legal meanings in a sustained manner from 1975 onwards when the Waitangi Tribunal was established. Maori sovereignty has been increasingly recognized in the past few decades, which is remarkable given that the British Crown continues to have jurisdiction over New Zealand. The kinds of colonial jurisdictions that emerged were not only varied but also unprecedented which led to of legal uncertainty. Because imperial conquest is predicated upon discovery and novelty, legal regimes were also invented to a large degree in the colonies even when European legal orders became the default system. Conquered territories became sites of experimentation, not least because conquered peoples were seen as less than people and therefore denied many basic rights. Because it enabled the articulation of sovereignty in the first place, law, as Michelle McKinley writes, provided the basis for empire itself.25 Elizabeth Kolsky argues that despite changes to the colonial legal system over time, what remained relatively constant was the law’s collusion in protecting and normalizing certain kinds of violence.26 Almost all European powers which colonized other parts of the world based their conquest and subsequent expansion on law. The language of law provided much legitimacy. In other words, the law of jurisdiction propelled colonialism forward even as it itself was in formation. As a result, Vague legal regimes remained the order of the day in many parts of the colonized world right up until independence however. Moreover, colonial state bureaucracies led to the proliferation of legal peripheries comprising populations far from the centre of state bureaucracy. These populations might be highly mobile, leading unconventional unsettled lives out at sea, along rivers, in the deserts and dense forests, always eluding the reins of the state as a result. Populations residing in 23 Saliha Belmessous, Assimilation and Empire: Uniformity in French and British Colonies, 1541–1954 (Oxford: Oxford University Press, 2013), 69. 24 For more on settler colonies, see Miranda C. L. Johnson, The Land Is Our History: Indigeneity, Law, and the Settler State (New York: Oxford University Press, 2016). 25 Michelle A. McKinley, Fractional Freedoms: Slavery, Intimacy, and Legal Mobilization in Colonial Lima, 1600-1700 (New York: Cambridge University Press, 2016), 13. 26 Elizabeth Kolsky, Colonial Justice in British India (Cambridge: Cambridge University Press, 2010), 11.

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68 Nurfadzilah Yahaya zones known as ‘Zomia’, a term coined by Willem van Schendel, are a perfect example of this. This region of Zomia is vast and amorphous, and consists of Laos, northern Thailand, northern Vietnam, the Shan Hills of northern Myanmar, and the mountains of south-west China, though possibly includes parts of India, Pakistan, and Bangladesh as well. James Scott argues that populations residing in Zomia actively resisted being appropriated by colonial states.27 Paradoxically, several colonial states might lay claim to its populations.28 Linked to this is another kind of legal periphery which is determined by geographical distance from the centre of power, wherever that might be. It is difficult for colonial officials, themselves relative newcomers to the region, to ascertain the extent of their territory and peoples. What was not a problem before for various peoples living in the region became a question to be resolved by colonial officials who of course desired to determine the extent of their control. From the beginning, those residing in conquered territory assimilated laws that were imposed on them and often, to the surprise and often chagrin of colonialists, became rather adept at utilizing tools of empire meant to subjugate them. Indeed, an unexpected consequence of the establishment of colonial courts is that claims-making by both subjects and non-subjects built up a momentum such that colonial jurisdictions stabilized in certain territories over time. Colonial subjects actively participated in creating legal norms and customs with varying degrees of success across the world. Law was used to subvert and bolster colonialism. To make things more complicated, jurisdictional spaces were also carved out by trade and diplomacy. By the nineteenth century, both had become handmaidens of colonialism, but they could theoretically exist perfectly well outside of it. For example, the curbing of piracy from the seventeenth until the nineteenth centuries, as Lauren Benton has shown, was something that was spurred on by commercial interests rather than imperial or colonial ambitions, though of course colonialism as a phenomenon encompassed several phenomena simultaneously.29 The nineteenth century was a time when new territorial boundaries were usually drawn irrespective of previous ones and continue to be redrawn right up till today. In tandem with this, people were constantly ascribed new identities that did not necessarily coincide with physical territories in which they lived. The concept of jurisdiction was defined by both physical territories and peoples, and the tension between the two was never resolved. Neither were overlaps clarified. The colonial period was politically volatile and sometimes violent and this led to rapid changes in taxonomy and territorial boundaries. In some cases where colonial rule had deeper roots, boundaries hardened over time to become less controversial as they become recognized in legal courts, but 27 Willem van Schendel, ‘Geographies of Knowing, Geographies of Ignorance: Jumping Scale in Southeast Asia’, in P. H. Kratoska, R. Raben, and H. S. Nordholt (eds.), Locating South East Asia, Geographies of Knowledge and Politics of Space (Singapore: National University of Singapore Press, 2005), 275–307. 28 James Scott, The Art of Not Being Governed: An Anarchist History of Upland Southeast Asia (New Haven: Yale University Press, 2009). 29 Lauren Benton, ‘Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism’, Comparative Studies in Society and History 47(4) (2005): 700–24.

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The European Concept of Jurisdiction in the Colonies 69 many other jurisdictions had to be determined repeatedly with each new legal case, especially if these cases challenged colonial boundaries in themselves. Not surprisingly, this acute sense of indeterminacy had long-lasting repercussions which are still very much with us today. To complicate matters, no regime was firmly territorialized under colonial rule such that colonial jurisdictions were total and complete. Colonialism was never monolithic. Even settler-colonies tended to exempt indigenous peoples from European colonial jurisdictions, albeit in an inconsistent manner, resulting in deep practical problems in legal courts. Jurisdiction and territoriality imposed by foreign sovereigns were sometimes recognized by colonial subjects or tacitly accepted, while at other times they were aggressively challenged. Both phenomena of collaboration and resistance would almost always be found in one territory simultaneously. As a result, colonial jurisdictions were, more often than not, precarious right up to the end and beset with practical problems. To add to this, colonial rule often led to many layers of jurisdiction within a single territory resulting in complex jurisdictions which were ordered hierarchically within colonial formulation with European legal orders at the very top. Pluralist configurations in various formats further complicated matters as different groups could jostle over jurisdictional politics. After much struggle, certain favoured groups were sometimes granted exceptions to the rule, and special privileges. On the other hand, recalcitrant groups and intractable populations would be subjected to harsher laws than their more amenable counterparts.

V. Extraterritoriality On the flip side of the coin, extraterritorial jurisdictions in the form of treaty ports, concessions, garrisons, and protectorates could be seen as an extreme manifestation of this scheme of privileges and exceptions. The primary impetus for engaging in extraterritorial negotiations was to protect commercial interests. Extensive commercial contact naturally led to many disputes and Europeans refused to be subjected to nonWestern laws. Asymmetry of power is implied in every concessionary arrangement. Extraterritoriality was rightfully deemed to be ‘quintessential legal imperialism’, especially since it was yoked to a scale of civilization.30 In nearly all these arrangements, the exceptional areas were literal concessions granted as gifts by the sovereign powers who continued to have a hold over territories and which they willingly chose to concede not out of coercion, at least in theory. Hence a concession, despite the term, was not an outright surrender; rather, it was officially a voluntary, temporary suspension of local jurisdiction on the part of the sovereign ruler. But in essence, treaties out of which concessions to foreign powers were borne were deeply unequal and 30 Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge: Cambridge University Press, 2014), 6.

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70 Nurfadzilah Yahaya favoured the grantee rather than the grantor who essentially lost legal power to persecute people residing in their own sovereign territory. Concessions were not purely territorial— they could also comprise peoples. For example, British authorities even managed to include Ionians and Maltese subjects within the Ottoman Empire in their jurisdictions as part of these concessions. Extraterritorial treaties tended to be signed at the end of wars with Qing China and the Ottoman Empire.31 Territories which became concessions were areas where many foreigners had already staked out their lives for decades. Often, concessions in the form of specifically granting jurisdictions to foreign powers followed actually physical occupation more in line with conventional forms of colonialism. After all, concessions meant that the authorizing power granted the right of legal authority in the same manner as if the foreign power had acquired that jurisdiction by complete secession or conquest of territory. Having been delegated power by the sovereign ruler, authorities in each concession had the right to establish their own police force and legal jurisdictions, military garrisons, and in some cases even standing armies. After all, the production and continued maintenance of extraterritorial legal authority required not just a legal framework that staved off older forms of Chinese and Ottoman sovereignties, but also the material capability to defend these extraterritorial court systems against local populations who, not surprisingly, became more resentful of foreign jurisdictions as time went by.32 The system of concessions led to the bifurcation of the concepts of sovereignty and jurisdictions which were no longer one and the same in a single territory. Treaties of concessions and subsequent regulations would emphasize this repeatedly, such as Article 28 of the Shanghai International Settlement in China which was established in 1863 which stated unequivocally that the land encompassed in the territory remains Chinese territory subject to China’s sovereign rights although foreign concessions in Shanghai were granted to French, British, and American authorities who maintained their own jurisdictions.33 While the British had their own concession, the Americans and French merged theirs to become the International Settlement. Each exceptional jurisdiction could possibly lie within the wide range of colonial jurisdictions. Extraterritorial jurisdictions might appear limited and exceptional compared to surrounding regions, but it was actually wrangled by already powerful parties in the region which were already able to define the status quo to the extent of carving out independent jurisdictions for themselves without actual extensive occupation. Hence, these novel arrangements which proliferated in the nineteenth century should be seen as diplomatic and legal triumphs by Europeans because, in all cases, it led them to encroach

31 Timothy Brook, Opium Regimes: China, Britain and Japan, 1839–1952 (Berkeley: University of California Press, 2007), 68. 32 Kayaoglu (n. 29), 6. 33 Manley O. Hudson, ‘The Rendition of the International Mixed Court at Shanghai’, The American Journal of International Law 21(3) (July 1927): 451–71.

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The European Concept of Jurisdiction in the Colonies 71 on surrounding regions in the future and possibly intervene.34 Asserting one’s own jurisdictions in another territory was often formally presented as a matter of convenience, but in actual fact implied a blatant refusal by Europeans to submit to another person’s laws. For example, in Ottoman territories, a legal regime based on a system of legal capitulations was originally designed to protect the various subjects of European states from alleged discrimination under Islamic law. Similarly, in parts of China, the system was established so that Europeans need not subject themselves to Chinese i mperial laws. In fact, the popularity of extraterritorial agreements amongst European powers implied that non-European laws were lower and not on par with European laws. During the nineteenth century, British authorities managed to establish extraterritorial jurisdictions in Algeria, Tunisia, Zanzibar, Tonga, Madagascar, Samoa, Japan, Congo, Korea, Morocco, Tripoli, Egypt, Turkey, Iran, Thailand, and China.35 In China, the system of unequal treaties which led to concessions was propelled by the rise of opium as a commodity and gunboat diplomacy which helped to sustain it from 1842 to 1943. In comparison, Japan managed to negotiate more equal treaties with European powers and this arrangement lasted from 1856 to 1899. The Ottoman Empire in contrast disintegrated partly because of extraterritorial agreements which contributed to high attrition within its territories especially on the margins. Nonetheless, separate jurisdictions for different groups of people were often confusing for all parties involved, not least because these jurisdictions often overlapped, contradicted, and undermined each other. Subsequently, competing European concepts of jurisdiction were also used to stave off other encroaching contenders for territories and to subjugate yet more colonial populations. Often, jurisdictional politics were deployed by colonial powers to play off subjects against each other or against other European powers, as in the case of Native Americans in Spanish colonies.36 Likewise, those who had been subjugated could play off later conquerors against the older ones in the hope of obtaining their freedom or at least some concessions. Within the colonial framework, the impetus for change was certainly top-down for the most part, although scholars now favour a more complex approach which is dialogic. Historian Lauren Benton, for example, argues that jurisdictional politics also played a role in spreading jurisdictions, especially in the margins of empires and at lower legal bureaucratic levels. The phenomenon of playing off one jurisdiction against others by European and native litigants as part of claims-making spurred by individual and collective agendas also empowered legal institutions.37 What emerged from this phenomenon was the implicit recognition of mutually understood relationships between sovereign 34 Matthew Craven, ‘Between Law and History: The Berlin Conference of 1884–1885 and the Logic of Free Trade’, London Review of International Law 3(1) (1 March 2015): 31–59. 35 Kayaoglu (n. 29), 5. 36 Brian Philip Owensby, Empire of Law and Indian Justice in Colonial Mexico (Stanford, CA: Stanford University Press, 2008); Lauren Benton, ‘Making Order Out of Trouble: Jurisdictional Politics in the Spanish Colonial Borderlands’, Law and Social Inquiry 26(2) (2001): 373–401. 37 Lauren Benton, ‘Colonial Law and Cultural Difference: Jurisdictional Politics and the Formation of the Colonial State’, Comparative Studies in Society and History 41(30) (July 1999): 563–88.

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72 Nurfadzilah Yahaya and subject. Jurisdictions were in this way extended and reinforced. But lest we forget, law continued to be an arena for the negotiation of colonial power relations.38 Judicial activism, for example, was very much a feature of colonial rule, especially in Spanish colonies. The outcome of litigation is always unpredictable especially in an era of quick changes in the nineteenth century. Because of that, litigants often bring cases to multiple jurisdictions that they have access to in order to maximize their chances of success.39 In all legal traditions, court cases play a distinct part in legal practice. Hence litigants, even colonial subjects, could shape colonial legal practice. Claims-making in colonial courts contributed to legal outcomes in the long run especially by establishing legal precedent, which has more weight in the common law tradition.

VI. The Spanish Concept of Jurisdiction The Spanish concept of jurisdiction was ambivalent within their empire in the Americas and only became murkier as Spanish authorities expanded their reach in the region. Spanish jurisdictions were stratified not just spatially but also according to religion and, more importantly, race. The three original categories of Spaniard, Black, and Indian gradually evolved into a complex mixture of peoples and cultures, especially in cities.40 The racialized ways of differentiating people in the colonies remained a common feature of European concepts of jurisdiction in the colonies. During the eighteenth century, both Portuguese and Spanish colonies became more centralized on the whole. Generally, Latin American jurisdiction in the nineteenth century was unclear because Spanish conceptions of territorial-administrative units were themselves uncertain p rimarily because the Spanish did not apply a single body of law to their colonies.41 The very diverse Rio de la Plata region presents an excellent case study in jurisdictional complications.42 On the north shore of the Rio de la Plata, the elite of Montevideo (located in present-day Argentina) exploited fiscal reforms to expand the jurisdiction of Montevideo especially over the borderlands in the closing decades of the eighteenth century in order to curb contraband trade 38 Martin Chanock, Law, Custom, and Social Order: The Colonial Experience in Malawi and Sambia (Portsmouth, NH: Heinemann, 1998). 39 For an example of this phenomenon within the British Empire during the nineteenth century, see Julia Stephens, ‘An Uncertain Inheritance: The Imperial Travels of Legal Migrants, from British India to Ottoman Iraq’, Law and History Review 32(4) (November 2014): 749–72. 40 Kevin Terraciano, ‘Indigenous Peoples in Colonial Spanish America’, in Thomas Holloway (ed.), A Companion to Latin American History (Chichester: Wiley-Blackwell, 2010), 137. 41 Ibid., 134. 42 Fabricio Pereira Prado, Edge of Empire: Atlantic Networks and Revolution in Bourbon Rio de la Plata (Oakland: University of California Press, 2015), 56–68.

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The European Concept of Jurisdiction in the Colonies 73 and to concentrate more power over commercial matters and natural resources in their hands.43 In 1810, Mexico achieved independence from Spain which was followed by great instability in the political economy. Between 1821 and 1870, Mexican intellectuals ‘scrutinized the colonial legal system, discussed it openly, and proposed new constitutions and civil, c riminal, and commercial codes to replace the body of law inherited from Spain’.44 However, the Spanish colonial legacy built upon racethinking had long-lasting repercussions even after independence. It proved impossible to shake off earlier conceptions of jurisdiction—the Chilean state sponsored s everal missions to European archives to identify and transcribe official records from the colonial period in order to respond to several territorial claims submitted by neighbouring states.45 Indeed, although legal practitioners may find the question of jurisdiction extremely frustrating, the issue was rarely clarified in the colonies so as to grant more latitude for action amongst colonial elite on the ground originally. In many cases though, such as in Latin America, legal vacuums and ambiguities were fruitfully manipulated by newly independent citizens. Slaves in the Rio de la Plata region exploited elite conflicts in legal courts following independence in the mid-nineteenth century to compel their inclusion within emerging national political communities and in this way used existing state legal institutions for their own end.46 As problems of jurisdiction were repeatedly raised throughout the colonial period, legal ambiguity could be exploited according to particular circumstances by all parties. Eventually, the question of jurisdictions was often contingent upon various factors such as networks of relations amongst people in a defined territory, property regimes, and domains of similar cultural practices. In other words, colonial jurisdictions were constructed not just based on law, or even primarily so, but also on history and political geography. Practical accommodation and quotidian contestations destabilized consistent colonial conceptions of jurisdictions. The Crown held sway over the entire Spanish Empire. On the ground, jurisdictions in Spain and Portugal and their colonies were handled by ‘cabildos’ which were bureaucratic units usually based in cities but oversaw surrounding rural areas as well within an area of 10 to 20 miles around the city depending on the location. In other words, legal authority was highly fragmented and localized. From the seventeenth century onwards, they were in charge of justice, public works, the distribution of urban land plots, the construction and maintenance of urban infrastructure, and the regulation of 43 Ibid., 91. 44 Silvia M. Arrom, ‘Changes in Mexican Family Law in the Nineteenth Century: The Civil Codes of 1870 and 1884’, Journal of Family History 10(3) (1985): 305–17. 45 Andrés Estefane, ‘Imperial Uncertainties and Republican Conflicts: Archives, Diplomacy, and Historiography in Nineteenth-Century Chile’, Early American Studies: An Interdisciplinary Journal 11(1) (Winter 2013): 192–207. 46 Joseph Younger, ‘Naturals of this Republic: Slave Law, Sovereignty, and the Legal Politics of Citizenship in the Río de la Plata Borderlands, 1845–1864’, Law and History Review 30(4) (November 2012): 1099–132.

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74 Nurfadzilah Yahaya local commerce.47 As councils in municipal governments, cabildos possessed wide-ranging powers and exerted judicial, legislative, and administrative functions. Staffed with functionaries known as regidores (councilmen) and alcaldes (mayors), they were managed by a council of four to twelve elite men who were elected. Corregidores, appointed by the Spanish Crown, acted as royal representatives.48 Corregidores often presided over legal cases, though often were not trained in the law functioning more like magistrates rather than as judges. The cabildos were controlled by residents with full political rights. Cabildos proliferated as time went by, and often acted independently of the Crown which was of course located far away. Cabildos governed through the establishment of ordenanzas (ordinances), which were a ‘loose aggregation of laws, traditions, and special concessions rather than a single document.’ Yet, the cabildo was just one institution in a vast hierarchy of institutions. Not surprisingly, the cabildos come into contact with the Viceroy; the Real Audiencia (Royal Audience), which is the Chancellery or appellate courts; and the Protector of Indians. This hierarchy was more or less replicated throughout the New World. Over time, jurisdiction became more fragmented thus weakening the effectiveness of the cabildo as institutions, though it maintained the right to directly petition the Crown in Spain. More power was granted to newer groups previously without power. The cabildo became the locus of regional disputes over local affairs.49

VII. The British Empire From the late eighteenth century onwards, British colonial officials made huge strides in asserting jurisdiction on a large scale in the Pacific, South Asia, and the Atlantic. Although jurisdiction was a messy affair in practice, British authorities enthusiastically extended it across areas they believed they controlled. In this way, they wielded imperial power as a controlling authority over a field of smaller sovereignties.50 While earlier efforts focused on trade and diplomacy, and these strategies continued, British imperial authorities pursued a policy bent on controlling what they perceived and/or called despotic rule. The absence of a state-centred legal system meant that the concept of the ‘rule of law’ was bandied around to justify colonial intervention into local politics. The law that was subsequently introduced under the aegis of colonialism was European law and favoured colonialists with its own hierarchy with Europeans predictably at the top. Framed as a measure of protection without according human rights, colonial jurisdictions formed a paradox at the site of establishment. According to Lauren Benton, the goal of strengthening imperial jurisdiction as a check on arbitrary power activated various 47 Prado (n. 41), 86. 48 J. P. Moore, The Cabildo in Peru under the Hapsburgs (Durham: Duke University Press,1954); J. P. Moore, The Cabildo in Peru under the Bourbons (Durham: Duke University Press, 1966). 49 Prado (n. 41), 86. 50 Benton and Ford (n. 21), 23.

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The European Concept of Jurisdiction in the Colonies 75 smaller objectives: establishing clearer colonial appeals processes; containing the power of local elites, from colonial officials to slaveholders to indigenous lords; and publicizing supposedly foundational standards of procedural justice.51 Almost all colonial jurisdictions were layered and arranged both hierarchically and horizontally in various configurations. The phenomenon of legal pluralism was established in order to accommodate the laws of as many different peoples as possible, ironically couched in the language of equity and fairness at times. Separate legal forums for different ethnic and religious communities were established in the form of state-sanctioned legal pluralism enforced from above under the umbrella of English common law. The English East India Company established parallel sets of laws and law courts for different groups of people. There were Crown Courts in the Presidencies (urban centres of Bombay, Calcutta, and Madras) which were tribunals of English law with jurisdiction over everyone living in the Presidencies and in all cases involving Britons. Outside of the Presidencies in regions known as the ‘mofussil’, Company Courts administered plurality of laws, and had jurisdiction over Indians and non-British Europeans in the interior.52 Courts were hardly equal and often had to defer to higher courts. The ranks of litigants and parties involved would almost always be taken into consideration by judges. Issues of jurisdiction lingered because people came into contact with each other socially, and in the marketplace. In cases involving both Natives and Englishmen, Natives were subjected to laws meant for Englishmen since the latter could never be subjected to laws meant for Natives within colonial settings. Despite the immense reach of empire in the nineteenth century when imperial roots sank deep into many parts of the world, certain groups of people remained resilient to being incorporated into colonial jurisdictions even theoretically. Groups who were particularly resilient were indigenous people, slaves (or former slaves), and religious minorities.53 Some groups of people were granted exemptions from some or even all jurisdictions due to oversight or deliberate policies. For example, historian Elizabeth Kolsky describes how the plural legal system resulted in white Britons not being able to be persecuted and punished for committing crimes creating a place of ‘white lawlessness’ in the centre of the Indian Empire in the late eighteenth century.54 In a way, the expanded jurisdiction and the deepening of legal infrastructure in India in the nineteenth century was intended to correct these lapses—to simultaneously control unruly Britons and control the lives of colonized Indian subjects. Hence, projects of codification and rationalization of law were launched in British India. Although this strategy gained significantly more traction in the nineteenth century, it was actually built on the East India Company’s views of jurisdiction in various places centuries before. As a corporate institution, the powerful Company acted as a 51 Ibid., 11. 52 Kolsky (n. 26), 11. 53 Lauren Benton and Richard J. Ross, ‘Empires and Legal Pluralism: Jurisdiction, Sovereignty, and Political Imagination in the Early Modern World’, in Lauren Benton and Richard J. Ross (eds.), Legal Pluralism and Empires, 1500–1850 (New York: New York University Press, 2013), 9. 54 Kolsky (n. 26), 11.

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76 Nurfadzilah Yahaya political government with sovereign powers, as Philip Stern robustly demonstrates.55 Based mostly in coastal cities, the Company built forts, codified law, brought in settlers, collected taxes, waged war, and generally laid down a framework for the governance of the environs in which they operated and carried on trade. As early as 1657, the Company’s charter covered all the trade and traffic in more than half of the globe between the Cape of Good Hope and the Strait of Magellan, which meant that they laid claim to jurisdiction over all English subjects in Asia and the Eurasian populations residing in its growing network of settlements.56 More importantly, the East India Company claimed monopolistic authority over territories and peoples under their command, thus paving the way for the Crown to take over this role in various parts of the world.57

VIII. The French Concept of Jurisdiction The French concept of jurisdiction in the nineteenth century evolved to take into account the colonies that they had acquired since the Napoleonic invasions of Syria and Egypt in from 1798 to 1799, and represents a watershed in the history of European colonial concepts of jurisdictions. French and Dutch system jurisdictions had many similarities. They were more varied, finely graded, and therefore more complicated than common law jurisdictions. Both French and Dutch jurisdictions were based more on race, largely divided into three categories—Europeans, foreign non-Europeans, and indigenous peoples. Within a single Dutch or French territory, there would be separate jurisdictions for each group. Different laws applied to each group. While the category of Europeans was relatively stable, the latter two categories were often fraught with ambiguity resulting in chaotic jurisdictions in French and Dutch colonies. In French territories overseas, Europeans were subjected to French law sometimes in modified versions while subject populations were sometimes subjected to the same laws, but at other times their own laws.58 Although the French consistently favoured indirect rule over their territories, they never resolved what ‘indirect rule’ actually entailed on the ground. In fact, each g overnor

55 Philip Stern, The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India (Oxford: Oxford University Press, 2012). 56 Ibid., 56. 57 Philip Stern, ‘Bundles of Hyphens, Corporations as Legal Communities in the Early Modern Empire’, in Richard Ross and Lauren Benton (eds.), Legal Pluralism and Empires, 1500–1850 (New York: New York University Press, 2013), 21–48. 58 Sally Low, ‘Les Tribunaux Résidentiels: Disputed Jurisdictions in the Protectorate of Cambodia’, French Colonial History 16 (2016): 79.

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The European Concept of Jurisdiction in the Colonies 77 of Cambodia in French Indochina interpreted it differently. To begin with, they relied more heavily on extraterritorial arrangements to firm up their hold over territories overseas during the nineteenth century. Towards the end of the nineteenth century, however, having gained a foothold in certain territories through this very system, the French government attempted to exclude other Europeans from these territories. More so than the British, the French inherited the protectionist discourse of the earlier imperial rulers—Spain and Portugal—over French subjects in order to further their hold in non-French territories especially in the Mediterranean region, resulting in multi-jurisdiction settings in Tunisia and Egypt. In Alexandria, where a court of legal capitulations catered for Europeans, even non-Europeans could switch their legal identities to acquire protégé status and seek protection for their socio-economic interests just like various Europeans.59 For example, some French colonial subjects living outside of French jurisdictions could enjoy French status. Jurisdiction over what became French Indochina was acquired incrementally at a slow pace over time. The French legal term ‘protectorat’ was misleading, since Cambodia essentially became a French colony de jure. In 1863, they signed the Treaty of Protection with King Norodom whose sovereignty they recognized, at least on paper. Norodom was interested in French protection against neighbouring territories—in particular Vietnam to their east, but also Siam to their west.60 In his quest to stake out Cambodian territorial jurisdiction while under siege from his enemies, he effectively established and extended French colonial reach in South-East Asia and granted them timber and mineral concessions. In 1884, French authorities forced the Cambodian king to cede even more rights to them under threat of violence in the form of three gunboats from Saigon. One of the articles of the treaty stated that the king should accept all administrative, judicial, financial, and commercial reforms by the French thereafter. Although a revolt followed the implementation of the treaty, by and large Cambodia fell under French rule in a complicated multilayered bureaucracy with frequent changes in highest leadership, who mixed up both juridical laws and delegation of colonial legislative powers.61 To further complicate matters, the rest of L’union Indochinoise (comprising Cambodia, Cochin China, Annam, and Tonkin) formed in 1887 and incorporating Laos in 1893, experienced different levels of legal intervention by French authorities. Cochin China and Laos had the same legal status de facto as territories under French sovereignty (pays de souveraineté Française). In Cochin China, French judges replaced local judges while in Laos, local judges and courts were allowed to remain but had to be supervised by the résident supérieur. Cambodia came increasingly under French colonial rule, even though it was officially a protectorate under the king’s rule. The other protectorate, Annam, in contrast, was not transformed in the way that Cambodia was. The French conception of jurisdiction was also extended to the Middle East where in 1881 French 59 Ziad Fahmy, ‘Jurisdictional Borderlands: Extraterritoriality and “Legal Chameleons” in Precolonial Alexandria, 1840–1870’, Comparative Studies in Society and History 55(2) (April 2013): 305–29. 60 Low (n. 57), 76. 61 Margaret Slocomb, An Economic History of Cambodia in the Twentieth Century (Singapore: Singapore University Press, 2010), 42.

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78 Nurfadzilah Yahaya colonial authorities themselves recognized that other European extraterritorial courts undermined their own control over the French Protectorate of Tunisia.62 Although they managed to establish themselves as the preponderant power in Tunisia by the end of the next decade by closing other European consular courts, extraterritorial arrangements for other European powers continued well into the twentieth century.

IX. Dutch Colonialism The Dutch legal system was also stratified according to ethnicity. In 1800, the Dutch government authorities took over the Dutch East India Company government in the Netherlands Indies which is now Indonesia. From the early seventeenth century, the Dutch East India Company (VOC) allowed local populations to abide by their own laws with minimal interference, although they did appoint heads of various communities in the colony. By 1760, civil law in VOC courts was extended to both Natives (Javanese) and Foreign Orientals (Chinese, Japanese Arabs, South Asians and even other Indonesians) in areas of commercial interest, namely port cities and coastal areas where the VOC was based.63 In 1838, the Dutch civil code, heavily influenced by French codes, was introduced in the Netherlands, revamped in 1848, and revised again in 1886 with strong German inflections. In 1848, forty-eight years after the Dutch government officially took over from the VOC as political rulers of the Netherlands Indies, colonial authorities began to take a firmer hand in the legal lives of subjects. A range of new codes were introduced including a civil code, a code of commerce, and a code of c riminal procedure.64 Since many Foreign Orientals were mostly thought to be merchants, European merchant houses specifically requested the Dutch colonial government to apply Dutch civil and commercial law for all their trading partners in the 1830s.65 By the following decade, Foreign Orientals were subjected to European law in commercial affairs. Europeans could not be tried in local courts which often meant that Foreign Orientals had to be subjected to laws reserved for Europeans in the Netherlands Indies. These Foreign Orientals were eventually subjected to European civil and commercial law even in commercial cases that did not involve Europeans. This was because subsection 78(2) of the Government Order in 1882 required both parties to be either Natives or Foreign Orientals for cases to be tried in lower courts known as the ‘landraden’. As in other colonial jurisdictions and 62 Mary D. Lewis, Divided Rule: Sovereignty and Empire in French Tunisia, 1881–1938 (Berkeley: University of California Press, 2014), 38–60. 63 Cees Fasseur, ‘Cornerstone and Stumbling Block: Racial Classification and the Late Colonial State in Indonesia’, in Robert Cribb (ed.), The Late Colonial State in Indonesia: Political and Economic Foundations of the Netherlands Indies 1880–1942 (Leiden: KITLV Press, 1994), 32. 64 R. Supomo and R. Djokosutono, Sedjarah Politik Hukum Adat, Djilid 2 (Jakarta: Penerbit Djambatan, 1954), 1–2; J. M. J. Chorus et al., Introduction to Dutch Law (Boston: Kluwer Law International, 1998), 8–11; Fasseur (n. 62), 35. 65 Fasseur (n. 62), 37.

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The European Concept of Jurisdiction in the Colonies 79 in extraterritorial arrangements, economic position became the primary determinant in legal parity in colonial courts in the Netherlands Indies. While those classified as Natives were considered primary producers in the Dutch colonial imagination, the Arabs, Chinese, and South Indians were firmly identified as economic middlemen.66 Commercial efficiency demanded that commercial transactions be subjected to common norms dictated by colonial governments.67 Colonial subjects who tended to engage in urban business transactions were conveniently presumed by a useful fiction to have acquiesced to the relevant rules of Dutch commercial law. The fact that an overwhelming number of legal cases involving Foreign Orientals and European litigants tended to revolve around settlement of debts lent credence to this image though in reality Foreign Orientals had diverse vocations in the colony.68 Most importantly, the ethnic-based laws could not accommodate Dutch subjects of mixed descent, who transgressed categories of European, Native, and Foreign Orientals.

X. Postcolonial Legacy European concepts of jurisdiction were varied during the nineteenth century. One thing was for sure—the idea of territorial jurisdiction was imposed throughout the world as a handmaiden to colonialism. Jurisdictions were declared unilaterally and sometimes arbitrarily by colonial powers over huge swathes of territory. Territorial boundaries became more reified during the nineteenth century as cartography projects and imperial expeditions delineated borders, and colonial authorities enforced these border controls. Maps typically do not deal very well with the hierarchy of status claims over territory, as Prasenjit Duara writes,69 and so represent the new formulation of rigid and bounded jurisdictions very well as they portray an ideal image of jurisdictions more than the reality. The plethora of extraterritorial agreements that emerged in the nineteenth century continued to undermine the idea of bounded jurisdictions. As government bureaucracies became more streamlined during the nineteenth century across all empires, so too were legal systems. Legal courts were ranked and subsequently ordered on an imperial scale during the nineteenth century. In fact, the concept of territorial jurisdictions facilitated the expansion of European colonial rule in many parts of the world. The nineteenth century also witnessed the proliferation of layered patchworks of jurisdictions throughout the world. It led to the long-lasting 66 Daniel S. Lev, ‘The Origins of Indonesia Advocacy’, in Legal Evolution and Political Authority in Indonesia, Selected Essays (The Hague: Kluwer Law international, 2000), 249. 67 Daniel S. Lev, ‘Judicial Institutions and Legal Culture in Indonesia’, in Claire Holt (ed.), Culture and Politics in Indonesia (Ithaca: Cornell University Press, 1972), 252–3. 68 W. F. Wertheim, Indonesian Society in Transition: A Study of Social Change (The Hague: W. Van Hoeve, 1964), 175. 69 Prasenjit Duara, ‘Thongchai Winichakul. Siam Mapped: A History of the Geo-Body of a Nation’, American Historical Review 100(2) (1995): 479.

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80 Nurfadzilah Yahaya allocation of discriminatory legal status through jurisdiction. It was during the nineteenth century that race-thinking and bureaucratic rule merged to create complicated, finely calibrated jurisdictions. The endurance of legal systems and their effects outlived colonialism. British colonial jurisdiction was the most extensive and organized, and if there was an entity that came close to establishing legal hegemony in the world, it would be British colonial a uthorities. The Privy Council continued to be at the apex of the common law countries even after being granted independence since cases from former British colonies continued to brought to the highest appellate court. Since 1757, English common law spread throughout the British Empire and through the course of the nineteenth century became binding. Because of this, in essence, much of the Commonwealth today remains tied to common law jurisdictions. Similarly, since the early nineteenth century, the Napoleonic code (le Code civil) began to spread across several countries in the world with the Napoleonic invasions and remains the basis of law in former French colonies. Even the core of the Ottoman Empire did not escape the European concept of jurisdiction—the Sultanate enacted reforms in 1850 as it established a commercial, French-based code.

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Chapter 5

I m m a n u el K a n t a n d J u r isdiction i n I n ter nationa l L aw Stephan Wittich

I. Introduction

82

II. The Categorical Imperative and Jurisdiction: The Duty of Non-Intervention

83

III. Democratic Legitimacy of the Exercise of Jurisdiction

86

IV. Kant and Universal Jurisdiction

90

V. Towards a Concept of Judicial Hospitality?

94

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I. Introduction In his philosophical sketch on Perpetual Peace, Immanuel Kant lays out a general design of a world order that culminates in his visionary idea of a commonwealth of nations within a cosmopolitan legal order that ideally guarantees the well-being of nations and eternal peace among them.1 Kant’s fascinating oeuvre builds on an original doctrine of law, and it is the task of this chapter to detect any clue as to whether that doctrine contains familiar concepts or ideas of jurisdiction. This of course is not an easy attempt, and it is necessarily limited by several significant constraints. First it is always problematic, even pretentious, to look at a piece of work written more than 200 years ago and to compare it with sophisticated concepts and ideas that have not developed until recently. While jurisdiction is, to be sure, a timehonoured institution, it not only is based on completely different structural, political, legal and other premises today than those that existed in the late eighteenth century, but it has also been subject to significant change and progressive development in detail over the last decades. Like the writings of any scholar, Kant’s work is a product of the historical experiences of his times.2 What is more, Immanuel Kant’s work does not offer much information on and even less guidance to matters of jurisdiction. A major problem is that he uses the term jurisdiction in its original generic sense (Jurisdiktion) as a synonym for the judiciary as such, but does not address the various forms of exercise of jurisdiction—either by the judiciary or by other branches of government—nor its conditions and limits. Furthermore, Kant’s statements that may be taken to relate to questions of jurisdiction are dislocated from each other, incoherent, and terse, to say the least; and frequently his statements are in conflict, if not outright contradiction with each other, all of which make a reasonable discussion difficult. Much of the discussion on Kant’s statements of jurisdiction and many arguments raised in the course of that discussion will therefore be the product of contextual and intertemporal interpretation. However, in doing so one must be aware of the risk that, when interpreting early writings, we apply elaborate concepts as we know them today, and the result may be pure conjecture. So whenever one dives into the exercise of analysing Kant’s writings against the backdrop of jurisdiction, a healthy dose of caution and restraint is in place; otherwise one might read too much into his text. In other words, the danger is that when comparing modern concepts of jurisdiction to classical writings, we may tend to exaggerate the similarities at the expense of noting the differences. And it is particularly the

1 See generally the seminal article by Fernando R. Tesón, ‘The Kantian Theory of International Law’, Columbia Law Review 92 (1992): 53–102. See also Georg Cavallar, Pax Kantiana. Systematisch-historische Untersuchung des Entwurfs ‘Zum ewigen Frieden’ (1795) von Immanuel Kant (Vienna: Böhlau, 1992). 2 Georg Cavallar, Kant and the Theory and Practice of International Right (Cardiff: University of Wales Press, 1999), 44–50.

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kant and jurisdiction in international law 83 differences in the conceptual framework— legal, institutional, political, social—and the temporal distance that nowadays clearly separate us from Kant .3 The structure of this chapter is as follows: first, we will examine how Kant approached the very notion of jurisdiction itself as delimitation of interstate competences and its relationship to non-intervention and the separation of powers. Second, we will look at what Kant had to say on the requirement of democratic legitimacy for the exercise of jurisdiction. Third, we will analyse Kant’s vision of cosmopolitan law comprising ideas of universal jurisdiction as part of a law of world citizenship. The final section will attempt to link this basic understanding of universal jurisdiction with a modern approach towards judicial hospitality in relation to victims of serious crimes.

II. The Categorical Imperative and Jurisdiction: The Duty of Non-Intervention The establishment of the Westphalian system implied a significant reconceptualization of the ‘traditional’ international order (see also chapters 2 and 3 above) that brought about a new understanding of its very functions. In Kantian terms, with the Peace of Westphalia, European countries had left the state of nature and anarchy, but still failed to enter a full juridical condition. The peace settlements of 1713–15 established the European statecentred system and turned the existing balance of power into an international legal order of a European dimension (jus publicum europaeum, droit public de l’Europe).4 The basic but pivotal function of this traditional international law has been, and no doubt still is, conflict prevention in a broader sense. On this basis, the term ‘conflict’ describes a potential clash of legally protected national interests rather than a conflict of power, especially in the form of an armed conflict—although the latter is, to be sure, a specific manifestation of such a clash of interests covered by the idea of conflict prevention in the former sense. At the beginning of this development, more important than devising detailed substantive or material norms was the task of designing normative rules that would foster the purpose of avoiding such conflict situations. This was mainly achieved through establishing a system of law aimed at the peaceful coexistence of all states regardless of their structure and peculiarities; this international law of coexistence

3 Jürgen Habermas, ‘Kants Idee des Ewigen Friedens—aus dem historischen Abstand von 200 Jahren’, Kritische Justiz 28(3) (1995): 293. For an English version see Jürgen Habermas, ‘Kant’s Idea of Perpetual Peace, with the Benefit of Two Hundred Years’ Hindsight’, in James Bohman and Matthias LutzBachmann (eds.), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (Cambridge, MA: MIT Press, 1997) 113, 114. 4 Wilhelm G. Grewe, The Epochs of International Law (New York: de Gruyter, 2000), part 3.

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84 stephan wittich provided a sort of precaution that would ensure potential opponents were kept apart.5 Given the absence of prohibitive rules rendering the resort to war illegal, the main ‘tool’ for achieving this function was to p rovide for rules that would allocate the various sovereign competences among states and delimit these jurisdictional spheres of competences, or—in the Kelsenian sense—spheres of validity.6 These jurisdictional rules would not only delimit the territorial, personal, temporal, and material spheres of validity of domestic sovereignty, but at the same time also determine their substance and content. Many of the so-called ‘fundamental rights of the state’ (such as sovereignty, equality, independence, non-intervention) accordingly have their roots in such elementary considerations of jurisdictional delimitation. On that basis, jurisdictional rules would allow each sovereign to anticipate and ultimately foreclose disputes with other sovereigns concerning the pressing question as to who has regulatory control over a specific person or event, or a given set of facts at a particular point in time. These conflict rules would then determine which domestic law was applicable so as to avoid any overlap of conflicting jurisdictional claims.7 The desired effect of the combined application of these jurisdictional and subject matter rules would have been the peaceful coexistence of nations and, ideally, the progressive and fruitful cooperation in their mutual relations. Of course, Immanuel Kant did not deal with matters of jurisdiction in such a general, conceptual, or dogmatic sense, and even less so with different forms of jurisdiction in different areas of the law, such as criminal, public, or private law jurisdiction, or with jurisdictional principles that we nowadays consider as well-established and largely uncontested (such as subjective and objective territoriality; active and passive nationality; protective principle; effects doctrine etc.). In addition, Kant’s work does not address the question whether jurisdiction was permissive and hence comprehensive—as advanced by the Permanent Court of International Justice8—or whether it was limitative and subject to qualifying conditions. In general, and this is not surprising, it seems that for Kant, jurisdiction is inextricably bound up with sovereignty much in the same way as modern scholars say that sovereignty and jurisdiction are but complementary terms,9 that jurisdiction is a manifestation of State sovereignty,10 or that it is an aspect thereof.11 5 Wolfgang Friedmann, The Changing Structure of International Law (London: Stevens & Sons, 1964), 60–1. 6 Hans Kelsen has shaped his entire international law theory based on these spheres of validity, see Hans Kelsen and Robert W Tucker, Principles of International Law, 2nd edn (New York: Hot, Rinehart and Winston, 1967), chs. 3 and 4. See also William D. Coplin, The Functions of International Law: An Introduction to the Role of International Law in the Contemporary World (Chicago: Rand McNally & Company, 1966), 26–7 and passim. See also Frederick A. Mann, ‘The Doctrine of Jurisdiction in International Law’, RdC 111 (1964): 1, 15. 7 Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 85 (2014): 187, 188. 8 SS Lotus (France v Turkey) [1927] PCIJ Series A, No. 10, 19. 9 Georg Schwarzenberger, A Manual of International Law, 2 vols. (London: Stevens &Sons, 1960), I, 84. 10 Derek W. Bowett, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’, British Yearbook of International Law 53 (1983): 1. 11 This was also the position of the Permanent Court in the SS Lotus (n. 8), 19. Similarly, James Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford: Oxford University Press, 2012), 456; Malcolm N. Shaw, International Law, 8th edn (Cambridge: Cambridge University Press, 2017), 483.

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kant and jurisdiction in international law 85 In his Doctrine of Right, forming part of the Metaphysics of Morals, Kant views legal norms and their application to a given case as the sum of coercive powers driven by the categorical imperative in the overall conceptualization of law as an effective normative order.12 As a firm advocate of enlightenment, Kant was also a strong supporter of the idea of the separation of powers13 and argued that, for the critique of pure reason to be successful, the three branches had to cooperate.14 It is, however, striking that Kant ascribes coercive capability only to the executive branch while, to him, the powers of both the legislative and the judiciary are confined to prescribing the law in that they can only issue legally binding rules—law-making or legislation in the broad sense— and perform attributive functions by allocating rights and obligations, as well as powers and competences. This is very similar to a contemporary distinction in the doctrine between jurisdiction to prescribe, to adjudicate, and to enforce; and it is only the latter—enforcement jurisdiction—which, as a rule, has coercive powers and the legislative and the judiciary have to turn to the executive for enforcement of the rules they have established. Many observations in Kant’s Perpetual Peace in which he lays out his most comprehensive ideas of his international doctrine of right may be considered to be based on a traditional state-centred and sovereignty-driven understanding of jurisdiction as protecting the matters falling exclusively in the sovereign domain of every country,15 a perception that is in principle still valid today. As mentioned, classical international law was initially confined to a mere law of coexistence whose ultimate—and probably only—function was to avoid inter-state conflicts by providing rules of jurisdiction. Such jurisdictional rules would focus on mutual restrictions on the exercise of sovereign power and thus protect the internal domains of the freedom of individual state action. Accordingly, Kant considers right as ‘the sum total of those conditions within which the will of one person can be reconciled with the will of another in accordance with a universal law of freedom’.16 If one’s use of external freedom violates the freedom of others, any right entails the authority to apply coercion.17 Consequently, rational persons ought to coexist under a system of constraints ensuring mutually consistent domains of external freedom.18 It further follows that this system of constraints ought to limit everyone’s external freedom equally—the constraints should be general and universal. This universal principle of justice or rights is postulated in the six preliminary and three definitive articles of Kant’s Perpetual Peace, which shall ‘constitute the rules and the basis of

12 Bernd Ludwig, Kants Rechtslehre, Kant-Forschungen (Hamburg: Meiner, 1988), II, 64. 13 Wolfgang Kersting, Wohlgeordnete Freiheit (Berlin: de Gruyter, 1984), 258–74. 14 See most notably Immanuel Kant, ‘The Metaphysics of Morals’, in Kant: Political Writings, ed. Hans Siegbert Reiss (Cambridge: Cambridge University Press, 1991), 142. See also Cavallar (n. 1), 64. 15 Immanuel Kant, ‘Perpetual Peace’, in Kant: Political Writings, ed. Hans Siegbert Reiss (Cambridge: Cambridge University Press, 1991), 113: ‘The idea of international law presupposes the separate existence of many independent adjoining states.’ 16 Kant, ‘The Metaphysics of Morals’ (n. 14), 133. 17 Ibid., 134. 18 Thomas Pogge, ‘Kant’s Theory of Justice’, Kant-Studien 79 (1988): 414.

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86 stephan wittich l egitimation for internal and external State activity’.19 This understanding of jurisdiction is clearly motivated by the categorical imperative and by Kant’s idea of universal law. It is against this background that Kant in his fifth preliminary article for a perpetual peace makes a strong case for the prohibition of (armed) intervention when he states that ‘No state shall by force interfere with the constitution or government of another state.’ While this statement clearly addresses issues of sovereignty and independence, the use of force, and non-intervention as basic principles of international law rather than jurisdiction in the technical sense, any application of these principles in inter-state relations invariably implies the extraterritorial application of executive powers and of jurisdiction. The restraint exerted here by Kant is remarkable in two distinct respects, one historical and the other contemporary. First, Kant clearly—and generally—excludes the permissibility of resorting to intervention, whatever its justification. In a time where resort to war was considered the ultima ratio regum—even if it was, on its face, to be limited by the existence, or rather invocation, of a just cause on either side20—the general prohibition of the use of force was not just a novelty, but a revolutionary idea. On the other hand, Kant’s strict prohibition of armed intervention does not allow for an exception even in situations of serious human rights violations of the kind that occasionally gives rise to the claim of humanitarian intervention nowadays.21 This is what can be called the first shift of paradigms in Kant’s doctrine of international right22—or the first step in that shift—that is, the move from the traditional focus on the right to wage war to the right directed towards peace.

III. Democratic Legitimacy of the Exercise of Jurisdiction But there is a much deeper layer of reasoning contained in the Kantian view of prohibiting the extension of a state’s coercive powers beyond its territorial control, and that reasoning has only partially to do with principles such as sovereign equality or 19 Georg Geismann, ‘World Peace: Rational Idea and Reality. On the Principles of Kant’s Political Philosophy’, in Hariolf Oberer (ed.), Kant: Analysen—Probleme—Kritik, 3 vols. (Würzburg: Königshausen & Neumann, 1996), II, 265, 283 (emphasis in the original). 20 Cavallar (n. 2), 45. 21 See Tesón (n. 1), 91–2. The only exception mentioned by Kant is that ‘if a state, by internal rebellion should fall into two parts, each of which pretended to be a separate state making claim to the whole. To lend assistance to one of these cannot be considered an interference in the constitution of the other state (for it is then in a state of anarchy).’ On this see, among many others, Volker Marcus Hackel, Kants Friedensschrift und das Völkerrecht (Berlin: Duncker und Humblot, 2000), 187–8. For an apologetic, albeit ultimately unconvincing, invocation of Kant to legitimize unilateral intervention under the guise of the concept of responsibility to protect (R2P) see Heather M. Roff, Global Justice, Kant and the Responsibility to Protect: A Provisional Duty (London: Routledge, 2013). 22 See particularly Cavallar (n. 2), 53–60. Hauke Brunkhorst, ‘Paradigmenwechsel im Völkerrecht’, in Matthias Lutz-Bachmann and James Bohman (eds.), Frieden und Recht. Kants Friedensidee und das Problem einer neuen Weltordnung (Frankfurt am Main: Suhrkamp, 1996), 251.

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kant and jurisdiction in international law 87 on-intervention, or the concept of the separation of powers. One may read Kant’s n observations concerning non-intervention also in light of considerations of democratic legitimacy that nowadays take such a prominent place even in debates on the exercise, particularly extraterritorial, of jurisdiction. Kant is an enthusiastic supporter of democratic representation in the law-making process, although this might not be clearly visible at first glance, as his primary focus is that on the republican form of state, rather than the democratic form of government. Particularly in Perpetual Peace he gives us the impression that the mere pursuance of the spirit of republicanism would do. However, later in the Contest of Faculties, he makes it clear that a purely republican government is only of transitory nature and that the ‘pure’ and ‘true’ republic he envisages is identical with representative, constitutional democracy. In such a democracy, the people would be ‘literally asked for its consent’, and those who have to obey the law, those who are subject to adjudicative jurisdiction, are also those who legislate.23 He makes the strong case for a representative government of the people, a legislative parliamentary institution elected by the constituency. In Kant’s thinking, therefore, representative democracy in which the people elect their government is the ideal that accords with both the spirit and the letter of republicanism. Kant’s perception of democratic legitimacy of any exercise of legal rules is inherent in his understanding of what he calls ‘external and rightful freedom’. In his words: ‘In fact, my external and rightful freedom should be defined as a warrant to obey no external laws except those to which I have been able to give my own consent.’24 This early understanding of prescriptive jurisdiction clearly requires that the laws enacted must pass the test of rational deliberation25 by those who will be subject to them in order to be legitimate and thus deserving of compliance. In other words, one may only be required to comply with those laws to whose formation and very existence as well as substance and content one has contributed through democratic processes. On the other hand, democratic legitimacy also pursues the aim that those who create and pass the laws are ultimately held accountable to those who should be governed by these very laws.26 23 Kant, Contest of the Faculties, in Kant: Political Writings, ed. Hans Siegbert Reiss (Cambridge: Cambridge University Press, 1991), 187. 24 Kant, ‘Perpetual Peace’ (n. 15), 99 (italics in the original). 25 Matthias Lutz-Bachmann, ‘Kant’s Idea of Peace and the Philosophical Conception of a World Republic’, in James Bohman and Matthias Lutz-Bachmann (eds.), Perpetual Peace: Essays on Kant’s Cosmopolitan Idea (Cambridge: MIT Press, 1997), 59, 60. 26 This comes very close to what modern democratic theory assumes as a remarkably unitary conception of sovereignty, see Kenneth Baynes, ‘Communitarian and Cosmopolitan Challenges to Kant’s Conception of World Peace’, in Matthias Lutz-Bachmann and James Bohman (eds.), Frieden und Recht. Kants Friedensidee und das Problem einer neuen Weltordnung (Frankfurt am Main: Suhrkamp, 1996), 219, 226–7, citing David Held, ‘Democracy and the Global System’, in David Held (ed.), Political Theory Today (Stanford: Stanford University Press, 1991) 197, 223. James Crawford and Susan Marks, ‘The Global Democracy Deficit: An Essay in International Law and Its Limits’, in Daniele Archibugi, David Held, and Martin Köhler (eds.), Re-Imagining Political Community: Studies in Cosmopolitan Democracy (Stanford: Stanford University Press, 1998), 72, 83. See also with regard to extraterritorial jurisdiction Mark P. Gibney, ‘The Extraterritorial Application of U.S. Law: The Perversion of Democratic Governance, the Reversal of Institutional Roles, and the Imperative of Establishing Normative Principles’, Boston College International & Comparative Law Review 19 (1996): 297, 305.

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88 stephan wittich While the regular case of territorial jurisdiction will not raise great problems in this respect, the exercise of extraterritorial jurisdiction of domestic laws will usually be at variance with such considerations of democratic legitimacy, representation, and accountability. Trends towards ‘global interconnectedness’ have both modified and constrained the exercise of sovereignty and have called into question its assumptions about symmetry and congruence. Not only have the processes of globalization produced structures of decision-making that are less tied to the legal jurisdiction of the nation state and hence also less accountable; at the same time, many of the decisions that are still largely made within the legal framework of the nation state have consequences that go well beyond national territorial borders. As Cedric Ryngaert observed, ‘[f]rom the vantage point of democracy, assertions of extraterritorial jurisdiction impose laws on legal subjects who did not participate in the making or changing of these laws’.27 In addition, domestic courts tend to apply extraterritorial laws in many instances in an extensive, liberal way, such that these laws are broadly interpreted or even progressively developed by judicial law-making.28 What is more, the domestic judge applying domestic laws extraterritorially will often ignore, either deliberately or unknowingly, legitimate interests of other states, particularly those who might have a stronger connection to the case, or of individuals affected by the decision. Such a disclosure of ‘domestic’ bias may in turn be based on considerations of democratic accountability towards those who have made those laws. Thus, judicial law-making in the context of extraterritorial jurisdiction duplicates the democratic dilemma for those subject to such jurisdiction, the more so as they have neither consented to the extraterritorial exercise of prescriptive jurisdiction nor have they agreed to that of adjudicative jurisdiction . To this general problem of the lack of democratic legitimacy of extraterritorial jurisdiction, a Kantian observer would also critically remark that extraterritorial laws are often designed to protect the particular interests of individuals rather than the society at large and that, in any event, they tend to imply a strong sense of superiority of domestic over foreign laws. In many cases, the exercise of extraterritorial jurisdiction amounts to a unilateral arrogation of regulatory competence and expresses a sense of disrespect, or outright contempt, towards the foreign law—a law that may also be considered unable to dispense justice in an acceptable manner.29 Such an assumption of moral superiority in a national sense is at odds with Kant’s strong egalitarian approach towards the legislative power. Particularly in the Metaphysics of Morals he establishes three attributes that are inseparably linked to the nature of citizenship. The second attribute establishes ‘civil equality in recognising no-one among the people as superior to himself, unless it be someone whom he is just as morally entitled to bind by law as the other is to bind him’.30 At any rate, as rational human beings, we should, according to Kant, always consider that 27 Cedric Ryngaert, Jurisdiction in International Law (Oxford: Oxford University Press, 2015), 193. 28 See on this particularly Diane F. Orentlicher, ‘Whose Justice? Reconciling Universal Jurisdiction with Democratic Principles’, Georgetown Law Journal 92 (2004): 1057, 1089–103. 29 Ryngaert (n. 27), 192. 30 Kant, ‘The Metaphysics of Morals’ (n. 14), 139 (italics in the original).

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kant and jurisdiction in international law 89 even the special measure of concern we give to our own is justified not by any intrinsic superiority in the local but by the overall requirements of humanity. Any form of unilateral arrogation of jurisdictional competence would furthermore run counter to Kant’s clear stance against imperialism of every description.31 Instead of unilateral reliance on superiority, he postulates a democratic sovereignty of citizens that is differentiated, polycentric, and based on the mutual respect for any kind of cultural pluralism and diversity and, above all, non-interference. Finally, it is a major thrust of Kant’s view of the separation of powers that the holders of the three branches of government should act as representatives of the population in order to ensure that the general will, and not just an obscure factional, individualistic agenda, will be implemented and enforced by the organs of the state.32 As already mentioned, extraterritorial laws are often designed to protect individual or special interests of particular groups, rather than those of the society at large. However, much will depend here on the circumstances of the particular case. For instance, the requirement of consent so vigorously emphasized by Kant will be met in many instances of modern forms of extraterritorial criminal jurisdiction, such as in the case of transnational crimes which are invariably treaty-based. Hence in such a case, jurisdiction will only ‘operate’, for example through the concept of aut dedere aut judicare, in the relations among those states that have subscribed through ratification to becoming parties to such treaties. Here the requirement of consent will be perfectly met,33 but on many other occasions of extraterritorial jurisdiction the problem of democratic legitimacy—and the lack thereof—will remain. Unlike objections to extraterritoriality that are based on sovereignty and nonintervention and that are driven by interests of the sovereign state, democratic legitimacy as an argument against extraterritoriality is genuinely rooted in interests of the individual. This aspect of democratic legitimacy expresses the second shift of paradigms in Kant’s doctrine of international right—that is, the move away from a state-centred towards an anthropocentric legal order whose intrinsic purpose is to acknowledge and recognize the will of the individual and to respect and ensure human dignity. While Kant adopts and endorses the concept of state sovereignty as developed in ‘traditional’ international law, he reinterprets it as popular sovereignty that implies a strong democratic connotation.34 The third shift is completed by Kant’s vision of cosmopolitan law, which certainly offers the most interesting aspects of his doctrine of right in relation to jurisdiction.

31 See e.g. Georg Cavallar, Imperfect Cosmopolis: Studies in the History of International Theory and Cosmopolitan Ideas (Cardiff: University of Wales, 2011), particularly ch. 4 (‘Kant and the “Miserable Comforters”: Contractual Cosmopolitanism’). 32 Cavallar (n. 1), 150–1. 33 Orentlicher (n. 28), particularly at 1103–15. Whether such expression of consent could also follow from states’ ‘acceptance’ of obligations under customary international law is doubtful, given that in the formation of custom there is no element of consent proper involved. 34 This is what Tesón (n. 1) 54, describes as ‘normative individualism’—that is, ‘the premise that the primary normative unit is the individual, not the state’.

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90 stephan wittich

IV. Kant and Universal Jurisdiction In his second definitive article in Perpetual Peace, Kant postulates an international legal order based on a federation of states,35 which itself is conceptually built upon constitutionally established republican States according to his first definitive article.36 While Kant acknowledges that law has always a coercive attribute to it,37 his proposed federation of free states, and hence his entire idea of international law, derives from ‘some sort of contract’ and ‘must not be based on coercive laws’.38 Moreover, such a federation is not the same thing as an international federal state that would unify and replace the preexisting states; rather it would presuppose, or be conditioned upon, their continued existence.39 In other words, the modern system of sovereign states is not to be put in abeyance, but to be substantially reformed by a ‘negative substitute in the shape of an enduring and gradually expanding federation likely to prevent war’.40 While Kant thus does not pursue the idea of a ‘world state’ or a world republic, partly on pragmatic reasons (because a ‘universal state’ would be doomed to fail),41 partly on legal and moral reasons,42 he does not discard the idea altogether. In fact, the sovereign state which has established a ‘rightful condition’ of coexistence (among individuals as well as states), even if it has turned into a (democratically legitimized) republic, is but an inchoate step in the transitional phase within a process of establishing or implementing 35 Immanuel Kant, ‘Second Definitive Article of a Perpetual Peace: The Right of Nations Shall Be Based on a Federation of Free States’, in Kant: Political Writings, ed. Hans Siegbert Reiss (Cambridge: Cambridge University Press, 1991), 102. 36 Immanuel Kant, ‘First Definitive Article of a Perpetual Peace: The Civil Constitution of Every State Shall Be Republican’, in Kant: Political Writings, ed. Hans Siegbert Reiss (Cambridge: Cambridge University Press, 1991), 99. 37 Kant, ‘The Metaphysics of Morals’ (n. 14), 134–5. 38 See Kant’s explanations of the second definitive article (n. 35), 104 or the Appendix to Perpetual Peace, ‘On the Agreement between Politics and Morality According to the Transcendental Concept of Public Right’, in Kant: Political Writings, ed. Hans Siegbert Reiss (Cambridge: Cambridge University Press, 1991), 127. In view of contradictory statements, there is, however, some disagreement over Kant’s position on whether international law should become public coercive law, see e.g. Kant’s ‘On the Common Saying: “This May Be True in Theory, But It Does Not Apply in Practice” ’, Kant: Political Writings, ed. Hans Siegbert Reiss (Cambridge: Cambridge University Press, 1991), 89 (‘On the Relationship of Theory to Practice in International Right’). See more generally Pauline Kleingeld, ‘Immanuel Kant’, in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012), 1122, 1124. For a thorough discussion see Cavallar (n. 2), ch. 8, 113–31. 39 In Kant’s words: ‘This federation does not aim to acquire any power like that of a state, but merely to preserve and secure the freedom of each state in itself, along with that of the other confederated states, although this does not mean that they need to submit to public laws and to a coercive power which enforces them, as do men in a state of nature.’ Kant, ‘Perpetual Peace’ (n. 15), 104. Hackel (n. 21), 91. 40 Kant, ‘Perpetual Peace’ (n. 15), 105. 41 Peter Koller, ‘Frieden und Gerechtigkeit in einer geteilten Welt’, in Reinhard Merkel and Roland Wittmann (eds.), ‘Zum ewigen Frieden’. Grundlagen, Aktualität und Aussichten einer Idee von Immanuel Kant (Frankfurt am Main: Suhrkamp, 1996), 213, 220–2; Wolfgang Kersting, Kant über Recht (Paderborn: mentis, 2004), 157. 42 Cavallar (n. 2), 116; Cavallar (n. 1), 205–7.

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kant and jurisdiction in international law 91 a global or cosmopolitan law,43 ‘bringing the human race nearer and nearer to a cosmopolitan constitution’.44 A further step in this evolutionary process is what Kant proposes in his third definitive article. There he sketches out, albeit in a very vague and inconclusive manner, his idea of a ‘Cosmopolitan Right’ with which he irrevocably leaves the confines of traditional state-centred sovereignty. Crucially, this cosmopolitan right is not, as often argued, part of international law, but separated and conceptually distinct from it as well as from state law.45 This transition from international to cosmopolitan right certainly is the most innovative and revolutionary element in Perpetual Peace. For among other things, according to his ‘tripartite’ division of legal orders (domestic—international—cosmopolitan), Kant seems to confer some sort of legal subjecthood on individuals when he calls them ‘citizens of a universal state of mankind’.46 Eventually, however, the third definitive article will also ‘become obsolete as soon as a full juridical condition (the universal state, if this is Kant’s ultimate ideal) has been established’.47 Focusing on jurisdictional aspects within that cosmopolitan right, Kant makes the following often-quoted observation: The peoples of the earth have thus entered in varying degrees into a universal community, and it has developed to the point where a violation of rights in one part of the world is felt everywhere [i.e. throughout the world]. The idea of a cosmopolitan right is therefore not fantastic and overstrained; it is a necessary complement to the unwritten code of political and international right, transforming it into a universal right of humanity. Only under this condition can we flatter ourselves that we are continually advancing towards a perpetual peace.48

On its face, this statement appears to make the case for the exercise of jurisdiction based on the position of, or status as, victim of a violation of rights. It enunciates a remarkably progressive and, in every sense of the word, enlightened view of international society. It also implies a modern, anthropocentric understanding of jurisdiction. Thus, Kant seems to have envisaged an entitlement of individuals to international or transnational 43 Karlfriedrich Herb and Bernd Ludwig, ‘Naturzustand, Eigentum und Staat. Immanuel Kants Relativierung des “Ideal des hobbes” ’, Kant-Studien 84 (1993): 283, 313 (‘bloßes Durchgangsstadium innerhalb eines Prozesses der globalen Rechtsverwirklichung’). 44 Kant, ‘Perpetual Peace’ (n. 15), 106. 45 Hackel (n. 21), 95. 46 Kant, ‘Perpetual Peace’ (n. 15), 99. See also Reinhard Merkel, ‘ “Lauter leidige Tröster”. Kants Friedensschrift und die Idee eines Völkerstrafgerichtshofs’, in Reinhard Merkel and Roland Wittmann (eds.), ‘Zum ewigen Frieden’. Grundlagen, Aktualität und Aussichten einer Idee von Immanuel Kant (Frankfurt am Main: Suhrkamp, 1996), 309, 349; Pauline Kleingeld, ‘Kant’s Cosmopolitan Law: World Citizenship for a Global Order’, Kantian Review 2 (1998): 72, 83–5. However, the actual meaning of Kant’s views with regard to individuals as right-holders is not entirely clear as he seems to have abandoned this approach later in his Doctrine of Rights which refers to the rights of peoples or of nations only, and not of individuals as well, see Georg Cavallar, Kant’s Embedded Cosmopolitanism: History, Philosophy, and Education for World Citizens (Berlin: de Gruyter, 2015), 53. 47 Cavallar (n. 2), 60. 48 Kant, ‘Perpetual Peace’ (n. 15), 107–8 (italics in the original).

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92 stephan wittich protection, and an enforcement of rights that is commonly known nowadays as an exercise some form of universal jurisdiction. And indeed, scholars have frequently cited this passage in Perpetual Peace as an anticipation of the modern ‘concept’ or idea of universal jurisdiction.49 However, it is not entirely clear what Kant really had in mind when making this statement, and it is equally not clear what his motivation was. Contextually, that passage most likely is to be viewed as a direct reaction to oppressive imperialistic practices, especially colonialism and slavery.50 It concludes the third definitive article, in which Kant establishes the conditions of universal hospitality and heavily criticizes the colonial oppression at the time.51 In sum, the passage quoted is a direct consequence of cosmopolitan right, and from that follow several important considerations for Kant’s perception of extraterritorial jurisdiction as propounded in the paragraph quoted above. First, as it is a consequence of cosmopolitan right, any exercise of such jurisdiction is clearly based on legal grounds and not on moral justifications. As Kant states already in the introductory sentence to the third definitive article: ‘we are here concerned not with philanthropy, but with right’, and further: ‘In this context, hospitality means the right of a stranger not to be treated with hostility when he arrives on someone else’s territory.’52 Second, it would be at odds with Kantian thinking to reduce the meaning of that statement to an expression of the ‘common interest rationale’ as a conceptual basis 49 See e.g. Jonathan H. Marks, ‘Mending the Web: Universal Jurisdiction, Humanitarian Intervention and the Abrogation of Immunity by the Security Council’, Columbia Journal of Transnational Law 42 (2004): 445, 465; Ryngaert (n. 27), 126 (albeit Ryngaert also draws the distinction between universal and vicarious jurisdiction, and only the latter would be in pursuit of a ‘Kantian world view’, Ryngaert (n. 27), 121). See also Claus Kress, ‘International Criminal Law’, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, 11 vols. (Oxford: Oxford University Press, 2012), V, 717, 722. 50 For an extensive and highly informative interpretation, see Cavallar (n. 46), 70–3. Cavallar particularly notes one political event of the time that might have been influential for Kant writing the phrase quoted above, i.e. when the then first Governor-General of India was charged with high crimes, corruption, and misdemeanours. If this incident indeed had been the motive for the phrase quoted above, only little would be gained for the purpose of universal jurisdiction. For if one European were to criticize the violation of rights in another place on the earth committed by a fellow European, and if that violation it is felt ‘back home’ in Europe, the ‘interest’ in enforcing legally protected values would derive from considerations of active personality rather universality. Still, however, the investigations were also motivated by the conviction that the ‘British had an obligation to extend universally the fundamental standards of respect, rightfulness, and humanity that applied at home’ and that the issue was ‘not so much as one of establishing new standards but rather as holding British behavior up to norms that were well established and fairly uncontroversial in Europe but that Europeans regularly transgressed farther afield’, Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton: Princeton University Press, 2005), 78. 51 ‘If we compare with this ultimate end [the cosmopolitan constitution] the inhospitable conduct of the civilised states of our continent, especially the commercial states, the injustice which they display in visiting foreign countries and peoples (which in their case is the same as conquering them) seems appallingly great.’ Kant, ‘Perpetual Peace’ (n. 15), 106 (emphasis in the original). 52 Ibid. (italics in the original). He stresses that aspect literally in the segment quoted (‘a necessary complement to the unwritten code of political and international right’).

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kant and jurisdiction in international law 93 for universal jurisdiction. What Kant had in mind was not just an ‘extension of the traditional protective principle of jurisdiction’ where the traditional form exclusively protects ‘parochial’ national interests of the individual state, whereas its extended form would safeguard common sovereign interests of all states.53 Such an understanding reflects a purely state-centred view of international right, a view that Kant clearly discarded, precisely because he attempted to overcome the confines of territory, much in the same way as a modern perception of universal jurisdiction cannot (or no longer exclusively) be based on considerations of national sovereignty, state interest, or even inter-state comity.54 The only truly inter-state aspect inherent in Kant’s cosmopolitan right of hospitality that could charitably be detected by way of comparison to modern public international law is the concept of obligations erga omnes—that is, the right of states or, on the universal level, any state to invoke the breach of community obligations by another state. However, the concept of obligations erga omnes serves to assist in establishing or identifying standing in inter-state disputes and thus involves the possibility of enforcement on the level of state responsibility, but it has only little, if anything, to do with the exercise of jurisdiction by domestic authorities. Moreover, even obligations erga omnes are not restricted to the interests of the international community of states but to the international community as a whole,55 thus including individuals and other non-state actors.56 More convincing is an interpretation of universal jurisdiction, as arguably envisioned by Kant, that demonstrates a shift away from territoriality and sovereignty granting states a discretion to exercise jurisdiction towards an entitlement by the individual to have jurisdiction exercised in his/her interest. Parallel to the rise of human rights and corresponding obligations that limit the freedom of action of states and the extent of their discretionary rights, international law has also developed the idea that states may have a duty to exercise jurisdiction in particular circumstances. Moreover, this duty is not confined to interstate relations as notably in the field of transnational criminal law,57 but has arguably extended to the relations between states and individuals in that the latter enjoy the right to have jurisdiction exercised with regard to their individual rights.58 Ultimately, this 53 Marks (n. 49), 465–7. 54 Devika Hovell, ‘The Authority of Universal Jurisdiction’, European Journal of International Law 29 (2018): 427, 438–41. 55 See the famous dictum of the International Court in Barcelona Traction, Light and Power Co. Ltd, Second Phase Case (Belgium v Spain) (Merits) [1970] ICJ Rep. 3, 32, para. 33. Note, however, that back then the Court was not yet prepared to extend the right of standing ensuing from the concept of obligations erga omnes beyond states when it said that ‘[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection’. 56 In this case the eventual right of standing of individuals to enforce these—that is, their own rights— will of course depend on the availability of corresponding enforcement mechanisms. See ILC Articles on State Responsibility, commentary to Art. 33, para. 4. 57 See e.g. Neil Boister, An Introduction to Transnational Criminal Law (Oxford: Oxford University Press, 2012), 16–17. 58 Mills (n. 7), 213–30.

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94 stephan wittich results in a shift from permissive to mandatory jurisdiction, and in some circumstances this shift would extend even to situations of extraterritorial, particularly universal, jurisdiction.

V. Towards a Concept of Judicial Hospitality? These considerations of universal jurisdiction inherent in Kant’s reflections on a cosmopolitan right put the focus on the individual and his or her status as a victim of a violation of his/her rights. Such a reading of Kantian cosmopolitan law opens the door for universal jurisdiction as a form of ‘judicial hospitality’,59 which—in an era of globalization that percolates virtually any aspect of human interaction, that creates ‘delocalized injustices’, that produces transboundary harms in numerous different ways, that causes forced migration, and that is the root of movements of large groups of refugees and displaced persons—operates as a catalyst for judicial solidarity with victims. To be sure, we have to recall the limits of Kant’s own understanding of the cosmopolitan right of hospitality. For one, it is limited to a right of visit as a guest, not a right of residence,60 and, as such, will only be of a temporary nature. This is also borne out by the fact that the Cosmopolitan Right itself is only transitory, until it is replaced by the last step towards perpetual peace—that is, the ‘universal state’ that merges domestic right with cosmopolitan right. As to the substance of Kant’s idea of hospitality, it is quite restrictive in that it can be refused and the ‘stranger’ may be ‘turned away’ unless she/he faces death caused by his/her rejection.61 Therefore, the scope of universal jurisdiction will be limited to exceptional situations. However, Kant’s vision on a possible ‘cosmopolitan’ universal jurisdiction may be seen as a precursor to a very modern approach to the conceptual foundations of universal jurisdiction. The essential point here is that, irrespective of any requirement of a pre-existing link or connection to the forum state to establish jurisdiction in the latter, the victim of a violation of his or her international rights carries with him/her the damage incurred and thus operates as the medium of jurisdiction. In the concept of cosmopolitan right as put forward in Perpetual Peace, Kant views the individual as a holder of rights that are, after all, not bound to a particular state. Kant combines the inalienable right of human beings to possess and freely ‘dispose’ of (in the sense of decide on) their physical body and, as a consequence, the privilege not to suffer any 59 See Benoit Frydman, ‘L’Hospitalité judiciaire’, Séminaire de philosophie du droit 2006–2007 Justice et cosmopolitisme. 11ème séance, lundi 21 mai 2007, Institut des Hautes Etudes sur la Justice, http://www. philodroit.be/IMG/pdf/frydman_21_05_07-2.pdf. 60 Kant, ‘Perpetual Peace’ (n. 15), 106. 61 Ibid., 106. See also Georg Cavallar, The Rights of Strangers: Theories of International Hospitality, the Global Community, and Political Justice since Vitoria (Aldershot, Ashgate, 2002), 366 and 394.

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kant and jurisdiction in international law 95 violation of this right, on the one hand, with the right to occupy a place or territory somewhere simply to exist.62 In other words, the human body ‘is in need of a place, although it cannot claim to have that place as its possession’.63 From here it is only a short way to the idea that in cases of human rights violations, the breach and the ensuing harm ‘travel’ with the victim wherever he/she chooses or, depending on the circumstances, is forced to live. Recent scholarship has made a very powerful and progressive argument that reconceptualizes the foundations of universal jurisdiction along these lines.64 Where victims of crimes under international law are forced to resettle abroad, they will hardly have any access to justice but in the country where they have resettled. As Frédéric Mégret has aptly put it, the ‘body’ of the victim ‘describes the “place” of crime much better than, say, the territory of a state’,65 particularly the state on whose territory the crime was committed. The legacy of Immanuel Kant’s understanding of hospitality as a form of ‘embedded cosmopolitanism’ provides a sound basis for a duty of judicial hospitality that would allow diasporas, dislocated communities and other, oftentimes forgotten victims of international crimes to see justice done in their case wherever they find refuge and shelter. So far of course, current law and practice have not built on such a Kantian perspective of combining universal jurisdiction, access to justice, and a right to an effective remedy. For instance, the European Court of Human Rights, when faced with a claim for a duty of a state to exercise some form of civil universal jurisdiction in a case involving alleged acts of torture by and in another state, has insisted on some form of ‘sufficient connection between the case and the State which assumes jurisdiction’,66 even though the applicant has settled in the forum state and even became a naturalized citizen both of which either express or even require a genuine connection to the forum state. Whatever future developments, if any, will bring for a more liberal application of universal jurisdiction, the contours of such a concept have been clearly drawn already by Immanuel Kant. His main idea was the moral necessity and the practical possibility as well as the feasibility of a universal juridical commonwealth which, as he vigorously 62 Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor (New York, Cambridge University Press, 1991), 83, §13: ‘All men are originally (i.e., prior to any act of choice that establishes a right) in a possession of land that is in conformity with right, that is, they have a right to be wherever nature or chance (apart from their will) has placed them.’ Emphases added. See Reinhard Brandt, ‘Vom Weltbürgerrecht’, in Otfried Höffe (ed.), Immanuel Kant: Zum ewigen Frieden (Munich: Oldenbourg Akademieverlag, 2004), 133, 144. 63 Jørgen Huggler, ‘Cosmopolitanism and Peace in Kant’s Essay on “Perpetual Peace” ’, Studies in Philosophy and Education 29 (2010): 129, 132. 64 See in particular Frédéric Mégret, ‘The “Elephant in the Room” in Debates about Universal Jurisdiction: Diasporas, Duties of Hospitality, and the Constitution of the Political’, Transnational Legal Theory 6 (2015): 89; Devika Hovell, ‘The Authority of Universal Jurisdiction’, European Journal of International Law 29 (2018): 427. 65 Mégret (n. 64), 100. 66 ECtHR, Case of Naït-Liman v Switzerland, App. No. 51357/07, Judgment (Grand Chamber), 15 March 2018, para. 207.

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96 stephan wittich argued, is not an empty figment of the imagination but the eternal norm for all civil constitutions whatsoever.67 To be sure, Kant was fully aware of the difference between positive law as it actually stands and a much deeper concept of justice. However, an integral part of the latter is the idea of judicial hospitality to foreigners that provides the fundament of a victim-based understanding of universal jurisdiction. 67 Kant, ‘Contest of the Faculties’ (n. 23), 187.

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Pa rt I I I

T H E ORY

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Chapter 6

Nav igati ng Diffuse J u r isdictions An Intra-State Perspective Helen Quane

I. Introduction

100

II. Is it Law?

102

III. Is It State or Non-State Law?

107

IV. Mapping the Boundaries between State and Non-State Law: A More Calibrated Approach? IV.1. The Formation of Norms IV.2. The Recognition of Norms IV.3. The Interpretation of Norms IV.4. Enforcement of Norms

V. Conclusion

110

111 111 115 117

119

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100 Helen Quane

I. Introduction The idea of a single legal system operating to the exclusion of all others within a state’s territory no longer holds good, if it ever did. In its place, one often finds a multiplicity of normative legal systems operating in parallel to, if not in competition with, the state legal system. This de jure or de facto coexistence of different normative legal systems within the same geographical and temporal space generates legal pluralism which is a feature of most, if not all, jurisdictions today.1 It is a phenomenon that shows little sign of abating given the rising tide of claims for some form of state recognition of religious or customary laws. Legal pluralism can pose difficulties, however. The boundaries between the different legal systems are often ill-defined. This can create uncertainty about the jurisdiction of the respective systems, the status of norms from one system that are given effect in another, and how these norms should be interpreted and applied given their concurrent existence within more than one legal system. The lack of clarity also has important practical implications. For example, determining the boundaries between state and non-state law can have ramifications in international human rights law for the precise nature of a state’s obligations, the full import of certain reservations to human rights treaties,2 state responsibility, and the level of protection afforded to the rights of individuals within a state. Specifically, to say that religious or customary law can be classified as state law is to make the state ‘directly’ responsible for any human rights harm caused by that law.3 This means that the state will have violated the obligation ‘to respect’ human rights rather than failing to discharge the more indeterminate positive obligation ‘to protect’ rights against interference by non-state entities such as religious communities.4 Related to this, the level of harm experienced by the individual may be compounded by the fact that it is not being imposed by a religious or indigenous community but by the state itself which can impede, if not preclude, access to the state justice system for protection. It follows that the boundaries between state and non-state law are not narrow technical issues but are of significant import for a range of issues of international as well as national significance.

1 See also in a similar vein, W. Twining, ‘Normative and Legal Pluralism: A Global Perspective’, Duke Journal of Comparative and International Law 20 (2009–10): 473, 505; B. Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’, Sydney Law Review 30 (2008): 375–6. 2 See text accompanying n. 70. 3 See e.g. Appleby v United Kingdom (2003) 37 EHRR 38;, para. 41. 4 Ibid., para. 40. As the Court observed, in ‘determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual . . . The scope of this obligation will inevitably vary, having regard to the diversity of situations obtaining in Contracting States and the choices which must be made in terms of priorities and resources. Nor must such an obligation be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities.’

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Navigating Diffuse Jurisdictions 101 Just as the definition of non-state actors generated considerable debate in the uch-needed search for clarity,5 the definition of non-state law and specifically the m boundaries between state and non-state law also calls for clarity but has received much less attention, notwithstanding that both concepts can have significant implications for the international legal system. Against this backdrop, this chapter analyses the relationship between state and religious or customary law and the point at which these particular forms of non-state law6 are transformed into state law. The point at which t ransformation takes place can help map the boundaries between state and non-state law. It can also bring greater clarity to issues that are often misunderstood or misrepresented in p ublic discourse. The status of religious law in the United Kingdom is a case in point.7 When our courts enforce decisions of religious courts under the Arbitration Act 19968 does this mean that the religious laws on which these decisions are based are transposed into state law9 or is it simply a question of our courts upholding contractual rights or our freedom to resort to alternative dispute mechanisms? Further, by determining what exactly is being enforced by the state legal system, one can also make explicit the values being endorsed by it and the set of policy considerations in play. This is integral to any assessment of whether this exercise of jurisdiction by the state is sufficiently aligned with its international obligations especially under international human rights law. Given that legal pluralism is predicated on the existence of more than one legal system, this chapter begins by exploring the question whether religious or customary norms can be classified as ‘law’. Section II undertakes a brief review of some of the relevant literature in the area ranging from John Austin and Hans Kelsen to Brian Tamanaha and Paul Schiff Bermann. It concludes that one can classify some religious and customary norms as legal norms thereby admitting the possibility of some form of intra-state legal pluralism. The chapter then focuses on the boundaries between the different legal systems and how to delineate them. It does so primarily from the perspective of state law although this state-centred approach has no wider significance than being a helpful analytical tool to delineate the boundaries between different legal systems. The chapter maps out the dominant approaches to the question of what constitutes ‘state’ law in the literature, highlighting the tendency to focus on the issue of coercion or whether the law emanates from the ‘state’ (Section III). It argues that neither approach is sufficiently 5 See e.g. A. Clapham, Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006); P. Alston (ed.), Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005). 6 Other forms of non-state law include the laws established by financial, professional, or sporting bodies. 7 A notable example is the media coverage of the Archbishop of Canterbury’s 2008 lecture on ‘Civil and Religious Law in England’. See R. Griffith-Jones, ‘The “Unavoidable” Adoption of Shari’a Law: The Generation of a Media Storm’, in R. Griffith-Jones (ed.), Islam and English Law: Rights, Responsibilities and the Place of Shari’a (Cambridge: Cambridge University Press, 2013), 9, 12–14. 8 s. 1. Sharia courts are classified as arbitration courts for arbitral matters (these exclude family law matters). 9 See e.g. I. Edge, ‘Islamic Finance, Alternative Dispute Resolution and Family Law: Developments towards Legal Pluralism?’, in R. Griffith-Jones (ed.), Islam and English Law: Rights, Responsibilities and the Place of Shari’a (Cambridge: Cambridge University Press, 2013), 119.

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102 Helen Quane calibrated to guarantee a satisfactory assessment of how a particular law should be classified. For this reason, this chapter proposes an original approach to the question of classification. Drawing on the functions that are integral to the operation of state legal systems, it develops a continuum of such functions. Depending on the extent to which religious or customary law is engaged by the discharge of one or more of these functions, it argues that it is possible to determine whether the law can be classified as state law while performing the function(s) and for so long as it continues to do so. Such an approach admits the possibility of the concurrent classification of laws as state and non-state law which also has significant implications for the interpretation and application of such laws. In effect, this approach both broadens and deepens the scope of the enquiry and facilitates a more calibrated approach to the question of classification while making explicit the consequences that can attach to this classification under international law.

II. Is it Law? When discussing religious and customary norms, the first question that arises is whether it is correct to classify them as legal norms or whether they should be classified as a set of beliefs, values or traditions. If it is the latter, then at most they would be a source of inspiration for the development of the law but not an independent body of law in and of itself. As a set of beliefs, values or traditions they would be just one among many potential sources of inspiration for the development of a state’s legal system. The decisive point, however, is that there would be only one body of law, namely state law. The formation, interpretation and application of the law would remain within the control of one entity, the state. Any discussion of the potential implications of a state permitting the coexistence of different and potentially conflicting legal systems within its territory or of formally integrating all or part of these legal systems within the official legal system would, in theory, be rendered redundant. Much has been written about the concept of law.10 For present purposes, it is not necessary to undertake a systematic review of this literature or to engage in an in-depth analysis of the concept. It is sufficient to map out the key features of those theories that have salience in the present context. These include theories that explicitly recognize religious and customary norms as ‘law’, ranging from the nineteenth century ‘Command 10 For a brief overview of the philosophical, anthropological and theoretical debates about what is law, see e.g. W. Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge: Cambridge University Press, 2009), esp. chs. 3–4; R. Michaels, ‘What Is Non-State Law? A Primer’, in M. A. Helfand (ed.), Negotiating State and Non-State Law: The Challenge of Global and Local Legal Pluralism (New York: Cambridge University Press, 2015), 41, 49–53; J. Griffiths, ‘What Is Legal Pluralism?’, Journal of Legal Pluralism and Unofficial Law 24 (1986): 1; Tamanaha (n. 1), 391–6; F. von Benda-Beckmann, ‘Who’s Afraid of Legal Pluralism?’, Journal of Legal Pluralism and Unofficial Law 34 (2002): 37; S. Roberts, ‘After Government? On Representing Law without the State’, Modern Law Review 68 (2005): 1.

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Navigating Diffuse Jurisdictions 103 Theory’ of John Austin11 to the ‘non-essentialist’ theories of law in the literature on legal pluralism.12 At the other end of the spectrum, they also include Hans Kelsen’s Pure Theory of Law which, as a monist and state-centred theory of law, excludes the very possibility of classifying non-state norms as law.13 Kelsen’s theory is significant nevertheless as it encapsulates certain commonly held assumptions about when non-state norms are transposed into state law. As such, his theory is relevant not only to the present discussion but also the discussion that takes place in Sections III and IV of this chapter concerning the relationship between state and non-state law. It is useful to begin with John Austin as his theory explicitly addresses the question of whether religious and customary law is law. For Austin, religious laws14 are ‘law properly so called’ inasmuch as they are commands emanating from a ‘certain source’ which occupies a position of superiority vis-à-vis those to whom the commands are addressed and the commands are backed up with the threat of sanction suffered either ‘here or hereafter’.15 The position in relation to customary law is more complex. Where customary laws arise from the consent of the governed they are regarded as positive morality rather than law.16 However, some customary laws17 are regarded as ‘law properly so called’ when they constitute ‘commands (. . . being established by determinate individuals or bodies) . . ., are armed with sanctions, and impose duties’.18 In this context, the sanctions are styled moral sanctions in contrast to the political sanctions associated with the third category of law, positive law.19 The latter corresponds to what would generally be regarded as state law since it is defined as a command by a sovereign20 to members of an independent political society21 wherein that sovereign is supreme.22 While Austin’s theory has been heavily criticized, it is of interest in the present context because it proposes a concept of law that is capable of including religious law and some customary laws.23 In doing so, it does not collapse the distinction between law and other normative orders nor does it define law by reference to the state. In this 11 The Province of Jurisprudence Determined (Cambridge: Weidenfeld and Nicholson, 3rd impr., 1968). 12 See e.g. P. S. Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge: Cambridge University Press, 2012), 56; Tamanaha (n. 1), 396. 13 H. Kelsen, General Theory of Law and State, trans. A. Wedberg (Clark, NJ: Russell & Russell, 1961). 14 Referred to as ‘Divine laws’ or the ‘laws of God’ in Austin’s theory: Austin (n. 11), 33–58. 15 Ibid., 134 (emphasis in original), 34. 16 Ibid., 32. 17 Austin refers to them as ‘positive moral rules’ but the definition of these rules is capable of encompassing indigenous or other forms of customary law discussed in the present chapter: ibid., 134–5. 18 Ibid., 135 (emphasis in original). Austin subsequently notes that while this law is ‘law properly so called’, it ‘is not positive law but a rule of positive morality’: ibid., 139. 19 Ibid., 157. 20 A sovereign is defined as a ‘determinate human superior, not in a habit of obedience to a like superior’ who receives ‘habitual obedience from the bulk of a given society’: ibid., 194 (emphasis in original). 21 An independent political society is defined as a ‘political society consisting of a sovereign and subjects, as opposed to a political society which is . . . merely a limb or member of another political society’: ibid., 195. 22 Ibid., 9. 23 For an overview of the principal criticisms, see H. L. A. Hart, ‘Introduction’, ibid., xi–xv; Kelsen (n. 13), 31–2.

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104 Helen Quane respect, Austin avoids some of the difficulties associated with later attempts to develop a stand-alone theory of law that is sufficiently broad to encompass state and non-state law while addressing the problem of the ‘definitional stop’ in the sense of differentiating legal norms from other social norms.24 Austin’s theory is also of interest in suggesting ways to differentiate state and nonstate law. One is the religious, political, or moral nature of the sanctions they impose. The second is the way the law is created. While religious law is created by a divine entity, customary and positive law flow from human sources. The latter, in turn, can be distinguished by the fact that positive law is created by sovereigns as ‘political superiors’ while customary ‘law’ may be created by sovereigns albeit not as political superiors.25 Where law is created by the exercise of authority granted by the sovereign, it is deemed to be positive law.26 On this view, where the sovereign grants authority to religious or ethnic communities to regulate their personal status matters, the resulting regulation would, in effect, constitute positive or state law by virtue of this grant of authority. Austin also recognized that provisions of religious, customary, and positive law sometimes ‘coincide’ in the sense of containing similar norms.27 However, he was highly critical of those who would classify positive law as customary or religious law whenever it is inspired by the latter. For him, this would ‘confound positive law with law whereon it is fashioned, or with law whereunto it conforms’28 and ‘forget that the copy is the creature of the sovereign, and impute it to the author of the model’.29 As such, he would reject the suggestion found in some of the academic literature today that there can be a ‘blending’ of different legal orders leading to the creation of a ‘hybrid’ order.30 In this sense, Austin’s theory envisages distinct, almost hermetically sealed legal orders and, by implication, admits the possibility of the concurrent classification of norms as both state and non-state law. The possibility of religious or customary norms being classified as law and operating in parallel to state law is precluded by Kelsen’s Pure Theory of Law. For Kelsen, law is always positive law and its positivity lies in the fact that it is created by human beings.31 Religious norms being created by a divine entity cannot, on this view, constitute law. Aside from this, the nature of the sanctions associated with religious and customary norms preclude their classification as law. According to Kelsen, what distinguishes law from other social orders is that it purports to regulate human behaviour by coercion32 which is provided for by this order and socially organized.33 This can be contrasted with a religious order where the sanction is of a transcendent character and not socially organized and a moral order where the response or sanction is neither provided for by 24 See e.g. Twining (n. 10), 369–71; Tamanaha (n. 1), 392–4. 25 Austin (n. 11), 124, 135–9. 26 Ibid., 136–7. 27 Ibid., 159–60. 28 Ibid., 164. 29 Ibid., 163. 30 See e.g. A. J. Hoekema, ‘European Legal Encounters Between Minority and Majority Culture: Cases of Interlegality’, Journal of Legal Pluralism and Unofficial Law 51 (2005): 1, 20. 31 Kelsen (n. 13), 114, 9. 32 Ibid., 123, 18, 19, 20. 33 A socially organized sanction ‘is an act of coercion which an individual determined by the social order directs, in a manner determined by the social order, against the individual responsible for conduct contrary to that order:’ ibid., 20.

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Navigating Diffuse Jurisdictions 105 this order nor, if provided, socially organized.34 One finds a similar emphasis on coercion in more recent theories attempting to distinguish between state and non-state ‘law’35 although Kelsen’s theory denies the existence of any form of law beyond positive law. For Kelsen, there can only be one positive law for each territory36 and since the state as a social order is deemed to be identical with the law,37 this law can only be state law. Kelsen’s theory does admit the possibility of religious and customary norms being transposed into law. It acknowledges that law can be created by means of legal transactions which Kelsen defines as ‘an act by which the individuals authorized by the legal order regulate certain relations legally’.38 In effect, it directs attention to what Kelsen refers to as the dynamic concept of law by virtue of which law is anything created according to the procedure prescribed by the constitution fundamental to this order.39 When this procedure permits individuals to regulate their relations legally and those individuals choose to do so on the basis of religious and customary norms, the resulting transactions create law.40 However, one has to probe exactly what it is that becomes part of state law. For example, when individuals agree to regulate their relations on the basis of religious norms by virtue of the UK Arbitration Act 1996, is it their agreement that becomes part of state law or the religious norms on which this agreement is based? It highlights the need for reflection on what it is that is being transposed into state law. If it is the religious norms, then it suggests that by virtue of the Arbitration Act 1996, Sharia law and other forms of religious law are part of state law in the United Kingdom. Kelsen’s theory defines law by reference to the state and is a notable example of the type of state-centred legal theory that has ‘dominated’ legal scholarship.41 Once one departs from this state-centred approach, defining law becomes more difficult. This is evident from the numerous attempts to do so by philosophers, sociologists, and anthropologists of law.42 All encounter certain problems, notably that the theory either fails to distinguish between law and other normative systems or uses state law as a benchmark for defining law, thereby failing to provide a concept of law independent of the state.43 These problems are very much in evidence in the literature on legal pluralism44 prompting

34 Ibid., 20. 35 See e.g. A. A. An-Na’im, ‘Religion, the State, and Constitutionalism in Islamic and Comparative Perspectives’, Drake Law Review 57 (2008–9): 829. 36 Kelsen (n. 13), 49. 37 Ibid., 190, xvi. 38 Ibid., 137. 39 Ibid., 122–3. Kelsen distinguishes between this dynamic concept of law and his own theory of law. While the former defines ‘law’ in terms of something pertaining to a certain legal order, the latter would not regard every ‘law’ created by this procedure as a ‘legal norm’ since this term is deemed to apply only to a norm that purports to regulate human behaviour by providing an act of coercion as sanction: ibid., 123. 40 Ibid., 115–16, 137. 41 See e.g. M. Giudice, ‘Global Legal Pluralism: What’s Law Got to Do with It?’, Oxford Journal of Legal Studies 34 (2014): 589, 592. 42 See n. 10. 43 See e.g. Griffiths (n. 10), B. Z. Tamanaha, ‘The Folly of the “Social Scientific” Concept of Legal Pluralism’, Journal of Law and Society 20 (1993): 192; von Benda-Beckmann (n. 10). 44 For an overview, see further, Tamanaha (n. 1), 391–6. See also, the discussion in Griffiths (n. 10), 14–38; F. and K. von Benda-Beckmann, ‘The Dynamics of Change and Continuity in Plural Legal Orders’, Journal of Legal Pluralism and Unofficial Law 53–4 (2006): 1, 12–17; Twining (n. 1), 497–509.

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106 Helen Quane some scholars to abandon the concept of law altogether.45 However, not all have abandoned the search for a workable concept of law that can accommodate both state and non-state law. Brian Tamanaha and Paul Schiff Berman, for example, advocate a non-essentialist position whereby law is ‘that which people view as law’,46 although these approaches have been criticized for failing to provide a set of workable criteria for the identification of law and for conflating ‘analytic and folk concepts’ of law.47 The present author, like many international lawyers, adopts a fairly pragmatic approach to the definition of a legal norm.48 According to this approach, if the principal addressees of a norm, third-party decision-makers applying that norm, and other relevant actors within the system regard it as a ‘legal’ norm, then the classification of the norm as a legal norm will generally be accepted. Applying this approach to religious and customary norms, it is generally accepted that at least some of these norms are treated as legal norms within the systems that generated them. There is also considerable evidence to show that they are treated as legal norms within other systems. The customary law of indigenous peoples is a case in point.49 While customary law is clearly regarded as law within indigenous justice systems, it is also regarded as law by the courts, legislatures, and governments in numerous states,50 by several international courts and human rights bodies,51 and by human rights instruments accepted by the majority of the international community.52 At the very least, it suggests that this form of non-state law, in common with some religious forms of non-state law,53 is capable in principle of being classified as law.

45 See the discussion e.g. in Michaels (n. 10), 53; Tamanaha (n. 1), 395. 46 Berman (n. 12), 56–7; Tamanaha (n. 1), 396. 47 See e.g. the discussion of Tamanaha’s concept of law in Twining (n. 10), 370, 97, 101–2, 104. 48 See e.g. I. Brownlie, ‘The Reality and Efficacy of International Law’, British Yearbook of International Law 52 (1981): 1–2; P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th rev. edn (New York: Routledge, 1997), 6–7. 49 The sui generis nature of indigenous law should be noted, however. Underpinned by concepts of indigenous sovereignty and self-determination, it is markedly different from religious and other forms of non-state law. 50 See e.g. Malaysia’s National Report submitted to the UN Human Rights Council during the Second Cycle of Universal Periodic Review, UN Doc. A/HRC/WG.6/17/MYS/1 (2013), para. 72; Guatemala’s Combined Fourteenth and Fifteenth Periodic Reports to the Committee on the Elimination of Racial Discrimination, UN Doc. CERD/C/GTM/14–15 (2013), paras. 235, 238; Bolivia’s Third Periodic Report to the UN Human Rights Committee, UN Doc. CCPR/C/BOL/3 (2011), para. 31. 51 E.g. Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights (31 August 2001), paras. 138, 151 164. 52 E.g. the UN Declaration on the Rights of Indigenous Peoples, UNGA Res 61/295 (13 September 2007) (adopted by 143 votes to 4; 11 abstentions), Arts. 5, 11(2), 27, 34, 40. 53 E.g. the text of the reservations entered by Malaysia and Singapore to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). See reservations available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang= en#EndDec.

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Navigating Diffuse Jurisdictions 107

III. Is It State or Non-State Law? If religious and customary norms are capable of being regarded as law, the question then arises whether they should be classified as state or non-state law (or both). Two distinct approaches to this question tend to dominate the existing literature. One approach focuses on whether the norms are given effect within the state legal system. If they are, then they are treated as a form of state law. The alternative approach focuses on the character of the body adopting the norms. If it is a ‘state’ body, then any rules or regulations it formulates are deemed to be ‘state’ law. Drawing on the work of Abdullahi Ahmed An-Na’im54 and Brian Tamanaha,55 this section maps out some core features of each approach with a view to evaluating its usefulness in classifying religious and customary laws. At a general level, the first approach raises the question whether religious and customary laws are state law whenever they are accorded some effect within a state’s legal system or whether there is some ‘threshold’ to be met. If any effect is sufficient to transpose religious or customary laws into state law, then the enforcement of agreements based on Jewish or Sharia law in the United Kingdom might suggest that these religious laws are already part of state law. This merits reflection as it would have implications not only for those directly concerned but also potentially for the state’s role as the ‘neutral and impartial organiser of the exercise of religions’56 under international human rights law. Arguably, it is not sufficient to focus simply on the fact that norms are given some effect within a state legal system. It is important to analyse the extent to which they are given effect, the way it occurs, and the basis on which effect is given. A more nuanced version of this approach is evident in the work of Abdullahi Ahmed An-Na’im.57 It should be noted that his primary objective is not so much to distinguish between state and non-state law as to demonstrate that the notion of an Islamic state enforcing Sharia as ‘positive’ law is ‘conceptually incoherent’ and undesirable from a policy perspective.58 In language reminiscent of Kelsen, An-Na’im refers to ‘positive law’ or ‘state law’ as law enforced by the state.59 Although the emphasis is on coercion in identifying positive law, An-Na’im does not subscribe to a monist theory of law since he refers to Sharia as religious ‘law’.60 Hence while coercion is used by Kelsen to identify law, An-Na’im uses it to identify state law. A central theme in An-Na’im’s work is that it is conceptually impossible for Sharia to retain its classification as part of a religious normative system once it is enforced by the 54 An-Na’im (n. 35). See also, ‘Towards an Islamic Society, Not an Islamic State’, in R. Griffith-Jones (ed.), Islam and English Law: Rights, Responsibilities and the Place of Shari’a (Cambridge: Cambridge University Press, 2013), 238. 55 A General Jurisprudence of Law and Society (Oxford: Oxford University Press, 2001). 56 Refah Partisi (The Welfare Party) v Turkey No. 2 (2003) 37 EHRR 1, para. 128 (decision of the Grand Chamber). 57 See An-Na’im (n. 35). 58 Ibid., 840–4. 59 Ibid., 831. 60 Ibid., 831 (emphasis added).

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108 Helen Quane state as the state ‘can only enforce its own political will, not the will of God’.61 He accepts that religious values can be transposed into law as Muslims can propose legislation based on their religious beliefs using ‘civic reason’.62 Where the proposals are accepted as law, the decisive point is that this law is no longer religious law but state law. While he accepts that values can be overlapping, An-Na’im continually emphasizes the need to distinguish the nature of religious authority from the nature of political authority.63 There are clear policy considerations underpinning this position, notably the need to retain the neutrality of the state with respect to religious doctrine and to guard against the dangers associated with totalitarian states claiming religious legitimacy especially for those individuals who would seek to resist the governance model adopted by such states.64 An-Na’im’s approach is useful in suggesting a clear basis for distinguishing between state and non-state law and is one which addresses the wider potential ramifications of classification. At the same time, it is possible to take issue with certain aspects of this approach. The emphasis on enforcement excludes consideration of other aspects of the legal system, such as mechanisms for the recognition and interpretation of norms. By factoring in these additional aspects, it is possible to appreciate more fully the complexity of the issues surrounding the classification of law and its broader implications. For example, a state legislature may pass a law stipulating that personal status matters such as marriage and divorce are regulated by religious authorities whose decisions are enforced by the state.65 In these circumstances, classifying the law as state law on the basis that it is adopted by the legislature and enforced by means of the coercive authority of the state presents an incomplete and arguably distorted view of this law. It downplays the fact that the principles governing personal status matters in that state exist simultaneously as religious principles and that their development within the religious normative system effectively dictates what it is that the state is enforcing. A more expansive approach may also address the type of concerns about human rights that underpin An Na’im’s approach. Simply asserting that law is state law by virtue of being enforced by the state even though it originates in religious law will not shut down debates about religious legitimacy nor will it ensure the necessary public space for freedom of religious expression. More importantly, an approach that effectively removes religious authorities from any analysis of state law and, by implication, from any part in its reform will undoubtedly hamper efforts to ensure that in practice as well as in theory these laws respect fundamental human rights.66 61 Ibid., 840, 847, 850. 62 Ibid., 843, 850. 63 Ibid., 850. 64 ‘Ibid., 842. 65 See e.g. Israel’s Initial Report submitted to the UN Human Rights Committee, UN Doc. CCPR/C/81/ Add.13 (1998), paras. 532, 549–50, 536, 701. 66 See e.g. the numerous recommendations of UN Human Rights Treaty Monitoring Bodies calling on states to involve religious leaders in the process of law reform especially rendering religious laws compatible with human rights norms, discussed in H. Quane, ‘Legal Pluralism and International Human Rights Law: Inherently Incompatible, Mutually Reinforcing or Something in Between?’, Oxford Journal of Legal Studies 33 (2013): 675, 699–700.

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Navigating Diffuse Jurisdictions 109 The alternative approach to classification focuses on the status of the body adopting the norms. Brian Tamanaha, for example, regards state law as having a ‘unique symbolic and institutional position that derives from the fact that it is state law—the state holds a unique . . . position in the contemporary political order’.67 For Tamanaha, state law ‘is the law identified with the state and its legal officials’.68 This might suggest a relatively clear-cut approach to distinguishing between state and non-state law. It is problematic nonetheless, not least because it presupposes a clear understanding of what is the ‘state’. Experience with the Human Rights Act in the United Kingdom has shown how difficult it can be to answer even the basic question of what is a ‘state’ function or function of a ‘public nature’.69 In the present context, a further layer of complexity is added. Even if one could determine that a body is exercising a state function, the question arises whether the regulations it adopts when performing that function constitute law and specifically state law. To give a concrete example, would all the regulations adopted by a private security firm in the context of operating a privately run prison be regarded as state law? It is not impossible to devise a framework for dealing with these issues but the difficulty with some of the literature is that there seems to be an assumption that the identity of state law and indeed what constitutes the state are self-evident. To sum up, there are difficulties with relying exclusively on either approach in determining whether a law should be classified as state or non-state law. Aside from this, the tendency to focus on the classification of law either as state or non-state law tends to sideline the possibility that law can be classified concurrently as state and non-state law. This is unfortunate given the potential implications of this dual classification for the interpretation and application of the law. For example, in some jurisdictions state law reproduces norms found in religious law. This raises the question which body, state or religious, can provide a definitive interpretation of the norm? A simple answer would be to let each body decide within the remit of its own jurisdiction but this risks the bifurcation of the law. This can cause uncertainty not only within the state’s jurisdiction but further afield. For instance, when a state enters a reservation to a human rights treaty to the effect that it will comply with the treaty so far as its provisions are compatible with the beliefs and principles of Islam, how can one determine whether it is complying with its obligations if there is uncertainty as to how these beliefs and principles are interpreted within the state? The broad-brush drafting of the reservation combined with the divergent interpretations of these ‘beliefs and principles’ can generate considerable uncertainty at the international level and undermine the extent to which the state can be rendered accountable for complying with its treaty obligations.70 Recognizing the potential dual classification of the law helps to make explicit the need for the state to 67 Tamanaha (n. 1), 411 (emphasis in original). 68 Tamanaha (n. 55), 225. 69 See e.g. Joint Committee on Human Rights, Seventh Report, The Meaning of Public Authority under the Human Rights Act (2003–4 HL 39; 2003–4 HC 382); D. Oliver, ‘Functions of a Public Nature under the Human Rights Act’, Public Law [2004]: 329. 70 See e.g. Brunei’s reservation to CEDAW based on its ‘Constitution . . . and . . . the beliefs and principles of Islam’. As is evident from the response of other states to this reservation, the precise status of these beliefs and principles within Brunei’s legal system and, consequently, the treaty commitments undertaken

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110 Helen Quane address these interpretive issues with a view to ensuring the effective discharge of its international obligations.

IV. Mapping the Boundaries between State and Non-State Law: A More Calibrated Approach? This section proposes a different approach to the classification of legal norms. It identifies a range of factors that can help determine whether religious and customary laws can be regarded as ‘state’ law. The analysis is undertaken explicitly from the perspective of the state legal system. This does not imply the monopoly of the state in law creation nor does it make the recognition of non-state law as ‘law’ dependent on recognition by the state or call into question the autonomy of non-state law. This approach represents a purely analytical tool for delineating the diffuse boundaries that often exist between state and non-state law. Further, this analysis eschews an exclusively binary classification of laws either as state or non-state law, preferring instead to highlight the permeable nature of the boundaries between these two types of law, the possible concurrent classification of laws, and the potential implications that can flow from this. The starting point for the present approach is the acknowledgement of the wide range of functions that are integral to the operation of any state legal system. While this approach has a functional dimension, it should not be mistaken for a functional theory of law.71 While the latter focuses on the broad societal functions that are believed to be performed by a legal system, the present approach focuses on the functions integral to the operation of a legal system and specifically a state legal system. These functions range from the formation and recognition of norms, to the interpretation of norms through to their enforcement. It is useful to position these functions at different points along a continuum. In this way, it becomes possible to unpack in more detail the range of questions that need to be addressed to determine the correct classification of religious and customary norms in any given context. The use of a continuum also demonstrates how few, if any, of these functions exist in isolation from one another. This is helpful as the extent to which specific norms are engaged by one or more of these functions can reinforce or lessen the impression that these norms may or may not be classified as state law. This should facilitate a broadening and deepening of the enquiry into how religious and customary norms should be classified and the development of a more calibrated approach to classification. by Brunei are unclear. See, reservation available at https://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=IV-8&chapter=4&lang=en#EndDec. 71 On functionalist theories, see Twining (n. 10), 109–16; B. Z. Tamanaha, ‘A Non-Essentialist Version of Legal Pluralism’, Journal of Law and Society 27 (2000): 296, 300–2.

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Navigating Diffuse Jurisdictions 111

IV.1. The Formation of Norms At one end of the continuum, there is the formation of norms. Norms can be generated by a variety of actors including religious authorities, indigenous peoples or state entities. Of course, any reference to ‘state’ entities raises the preliminary question of how to define the state. As this is an integral feature of each point on the continuum, it is useful to explain how this question is addressed in this chapter. While a considerable body of literature exists on this question, the chapter adopts a pragmatic and somewhat circumscribed approach. It draws on the law of state responsibility and specifically those international legal principles governing the attribution of conduct to the state. Drawing on these principles, when norms are formed by a de jure or de facto organ of the state or by an entity exercising elements of governmental authority,72 they will be deemed to be state norms. As experience with the Human Rights Act in the United Kingdom has shown, it can be difficult in practice to determine what constitutes ‘governmental authority’ or, to use the language of the Act, ‘functions of a public nature’.73 Notwithstanding these difficulties, the law on state responsibility provides some guiding principles. While it does not define the state as such, it does provide guidance on when conduct can be attributed to the state such that the conduct can be regarded as ‘state’ conduct. For present purposes, that is sufficient. When one or other of these three entities formulate norms, it follows that these norms can be regarded as state norms. Where non-state entities formulate the norms then the norms can be regarded as non-state norms. At this point, the position is straightforward. Matters become more complicated when the laws adopted by the state are influenced by non-state norms contained in religious or customary law. Where the influence is of a rather indeterminate character, the customary or religious law may be classified as a source of inspiration for the development of state law but it would be too tenuous to classify it as state law as such. Beyond this, it is necessary to enquire further into the nature and extent of this influence. At this point, the formation of norms tends to merge into the second point on the continuum, namely the recognition of norms as state law.

IV.2. The Recognition of Norms The recognition of norms as state law may seem to be a relatively straightforward process. Intuitively, one looks to the law created by the legislature to determine what can be regarded as state law. If religious and customary laws are recognized by the legislature, this may be sufficient to classify them as state law. On closer examination, this approach 72 International Law Commission, ‘Responsibility of States for Internationally Wrongful Acts, 2001’ (United Nations, 2001), Arts. 4, 5; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007 (International Court of Justice), paras. 392–3. 73 Human Rights Act 1998, s. 6(3)(b). See e.g. YL v Birmingham City Council [2008] 1 AC 95.

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112 Helen Quane may be overly narrow and overly broad. It may be overly narrow to the extent that it suggests that the legislature has a monopoly of law-making powers. Admittedly, this can be mitigated by recognizing that the legislature can create law directly or indirectly; the latter occurring when it confers certain powers on other entities which subsequently adopt rules, principles, or norms in the exercise of such powers. Nevertheless, it still does not capture the reality of the law-making process in many jurisdictions today, not least the role of the judiciary in this process. For this reason, it may be preferable to draw on Kelsen’s dynamic concept of state law—that is, anything created by the procedure prescribed by a state’s constitution. At the same time, this emphasis on the process by which law purportedly comes into being may be too broad. Revisiting the example of the privately run prison may help to illustrate the point. When operating the prison, the private security firm can be deemed to be exercising elements of governmental authority. While this is sufficient to ensure that in doing so its conduct can be regarded as state ‘conduct’, the question arises whether all the regulations it adopts while operating the prison may be regarded as state ‘law’. Compare regulations governing prison discipline with those governing the opening hours of the prison canteen. While it may be possible to regard the former as state law, it is questionable whether it is possible to do the same in respect of the latter. It highlights the need to look beyond the powers granted, directly or indirectly, by the legislator. In this regard, it brings to mind Austin’s theory of law by virtue of which not every Act of Parliament would necessarily be regarded as ‘law’74 and reserving the designation ‘law’ for those Acts of Parliament which oblige a person or persons ‘generally . . . to a course of conduct’.75 This suggests that to qualify as ‘law’ the regulation should have a normative character and apply generally rather than ‘specifically or individually’76 While this might be unduly limiting and at odds with the non-essentialist concept of law previously endorsed, it may be useful to retain some normative element given that the present discussion relates specifically to ‘state’ law and a normative component invariably is a feature of this type of law.77 To this, one could add an additional element, drawn from the earlier discussion of what constitutes law—namely, that the regulation should be capable of being perceived as ‘law’ by those to whom it is addressed and other participants within the state legal system.78 It follows that there are various steps in the process of determining whether religious or customary law is recognized as state law. The first is to determine whether it is recognized by an entity whose conduct can be attributed to the state such that recognition would constitute ‘state’ recognition. The second is to determine whether such recognition translates into recognition as state ‘law’. This requires a consideration of various factors, notably the procedure for granting this recognition, the normative character of the religious or customary laws in question, and the extent to which these religious or customary laws are regarded as ‘state law’ by participants within the state legal system. 74 Austin (n. 11), 20. 75 Ibid., 24 (emphasis in original). 76 Ibid., 19 (emphasis in original). 77 On the utility of including a normative component, see Twining (n. 10), 100. 78 While this may appear to introduce uncertainty into the law, the courts are used to dealing with imprecision, notably, in determining how an issue would be perceived by the ‘reasonable man’.

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Navigating Diffuse Jurisdictions 113 Having established in general terms the various factors that can help determine whether non-state law is recognized as state law, it is useful to turn now to some practical examples and the implications that can flow from the various forms of recognition granted to religious and customary law by the state. One form of recognition is the complete co-optation of non-state law, or part of this law, into state law. An example would be an Act of Parliament that reproduces provisions of religious or customary law governing the contraction of a valid marriage. In this instance, it may be possible to regard the relevant provisions of religious or customary law as state law because they have been adopted by the legislature, are normative in character, and are capable of being perceived as state law by participants in the state legal system. This is probably the most clear-cut case of non-state law being recognized as state law. At the same time, it is important to acknowledge that these provisions continue to exist within the non-state legal system. This, combined with the symmetry in the content of the provisions, suggests that the norms in question have a dual or concurrent classification. They exist both as state and non-state law. This concurrent classification may be only temporary in nature. As non-state law is often described as ‘living’ law, it can continue to evolve and in ways that diverge from the provisions that exist within the state legal system.79 If the non-state law evolves in ways that diverge from the legislative provisions, it is no longer accurate to refer to the concurrent classification of the provision. There is state law and non-state law although both have a common origin. This explicit acknowledgement that the classification of religious and customary law may not be a singular or static one is important. Focusing only on its status as a form of state law to the exclusion of its concurrent status as religious or customary law divorces it from the wider context (both state and non-state) including the range of factors that can determine how it is interpreted and applied. As such, it risks creating a distorted and incomplete account of this law as well as a disjuncture between law on the ground and law in the books. Crucially, it risks undermining the effectiveness of any strategies for reforming the law where, for example, the law is deemed to be incompatible with international human rights standards and insufficient efforts are made to involve the relevant religious or indigenous community in the reform process.80 Another form of recognition occurs where the state formally grants autonomy to a community over certain issues either on a territorial or a functional basis. In respect of the former, devolved, federal, or autonomous institutions may be established within the constitutional structure of the state. Where such institutions, acting within the remit of their powers, adopt legislation based on religious or customary laws, then prima facie 79 J. Bond, ‘Pluralism in Ghana: The Perils and Promise of Parallel Law’, Oregon Review of International Law 10 (2008): 391, 402; R. Perry, ‘Balancing Rights or Building Rights? Reconciling the Right to Using Customary Systems of Law with Competing Human Rights in Pursuit of Indigenous Sovereignty’, Harvard Human Rights Journal 24 (2011): 71, 108. 80 The need to engage these non-entities in law reform processes is evident, e.g. in the recommendations of the Committee on the Elimination of Discrimination Against Women to Mauritius: UN Doc. CEDAW/C/MAR/CO/5 (2006); the recommendation of the Special Rapporteur on Violence Against Women to Ghana: UN Doc. A/HRC/7/6/Add.3 (2008).

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114 Helen Quane these laws can be regarded as state laws.81 Such laws can exist simultaneously as state and non-state law. The position is more complex when the state grants autonomy to a community on a functional basis.82 For example, the grant of autonomy could relate to a religious community being able to determine the conditions under which members of that community can contract a valid marriage.83 Equally, the grant of autonomy could relate to internal community governance issues. For instance, the community may have the autonomy to regulate the manner of appointment of its religious leaders whose functions include officiating at marriages which are then recognized as valid marriages by the state. In these circumstances, the question arises whether all the laws adopted by the religious community constitute state law due to the grant of autonomy by the state. While it could be argued that the laws regulating the contraction of a valid marriage could be regarded as state law, can the same be said for the laws regulating the appointment of the religious community’s leaders? Indeed, to classify the latter as state law would suggest that the state is involved in the appointment of religious leaders, a situation that would raise issues under international human rights law in terms of respecting religious freedom.84 At the very least, it sounds a note of caution about adopting Kelsen’s approach to ‘legal transactions’ or Austin’s concept of an ‘indirect command’ from the sovereign as it invariably means that every form of regulation adopted due to the grant of autonomy by the state is treated as state law. It is submitted that while the grant of autonomy is one factor to be considered in determining the classification of laws, it should not be the only one. It is helpful to consider two additional factors. One relates to the nature of the regulation in question. Does it relate to a matter traditionally regulated by the state? In the example given, the regulation of how a valid marriage is contracted is one that is normally undertaken by the state. In contrast, regulating the appointment of religious leaders is not normally undertaken by the state. Admittedly, the distinction may not be clear-cut in all instances and there can be variations depending on the history and traditions of the state as well as their evolution over time.85 As a general principle, however, it can be helpful in considering whether a law should be classified as state law. A second factor relates to coercion. Although coercion is often associated with enforcement, it is useful to acknowledge its relevance to other points on the continuum. 81 See International Law Commission, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’ (United Nations, 2001), 40–2. 82 See e.g. the position in Ghana, discussed in Bond (n. 79). 83 See e.g. the situation in Jordan and Israel outlined respectively in UNHRC, ‘Report of the Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt: Addendum: Mission to Jordan’ (2014) UN Doc. A/HRC/25/58/Add.2, para. 28; UNHRC, ‘Report of the Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir: Addendum: Mission to Israel’ (2009) UN Doc. A/HRC/10/8/Add.2, para. 44 (‘Jahangir Report’). 84 See e.g. UNHRC, ‘Report of the Independent Expert on Minority Issues, Gay McDougall: Addendum: Mission to Greece’ (2009) UN Doc. A/HRC/10/11/Add.3, para. 95. 85 In this regard, it echoes the approach to determining what constitutes ‘elements of governmental authority’ under state responsibility law and the possibility of variable responses depending on the context in which the question arises.

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Navigating Diffuse Jurisdictions 115 In the present context, it relates to the availability of choice or what are often termed ‘exit routes’ for members of the community in question.86 For example, an individual may be able to contract a valid marriage only by complying with the religious laws of her community87 or she may have the additional option of contracting a valid marriage by complying with the laws applicable to everyone within the state.88 If the latter applies, one can argue that there is an exit route available and a choice whether or not to submit to regulation by the religious community of which she is a member. If the former applies, one can argue that she has no option but to comply with religious law if she wants to marry. In these circumstances, the absence of choice and its implications for the individual in question could be viewed as a form of coercion. In effect, the individual is being forced to submit to regulation by the religious community. This element of coercion, which is effectively brought about by the conduct of the state, should be an additional factor to be considered when determining whether the law should be classified as state law. Ultimately, all three factors (the grant of autonomy, the nature of regulation, and the issue of coercion) should be considered in determining whether religious or customary law is recognized as state law. In the example given, classifying the law as state law has practical implications as it would mean that the state itself is responsible for restricting the right to marry rather than for any failure on its part to discharge the more indeterminate positive obligation ‘to protect’ the right to marry against interferences by third parties such as religious bodies.

IV.3. The Interpretation of Norms The third point on the continuum relates to the interpretation of norms. State courts may be called upon to interpret norms that originate in religious or customary laws. This will often be the case where the provisions of religious or customary law are reproduced in an Act of Parliament. In these circumstances, the interpretation of these norms by state courts reinforces the perception already arrived at in relation to the recognition of these norms by the state—namely, that these norms are part of state law. Even where religious or customary laws have not been reproduced in Acts of Parliament, state courts may be called upon to interpret them. One example is where a state has a ‘Sharia Guarantee Clause’ by virtue of which laws adopted in accordance with constitutional provisions may be declared void if they are inconsistent with Sharia law and where the

86 See e.g. A. Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: Cambridge University Press, 2001). 87 In Israel e.g. there is no prospect of a civil marriage. According to one estimate, this means that more than 250,000 Israeli citizens and residents are barred from marrying in Israel including those who have no officially recognized religion, who are ‘unmarriageable according to Jewish law’ or ‘immigrants who are not recognized by the Orthodox Rabbinate as certain to be Jewish’: Jahangir Report, para. 45. 88 See e.g. the Marriage Act 1961 and the Recognition of Customary Marriages Act 1998 in South Africa.

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116 Helen Quane task of enforcing the clause is vested in judicial rather than political institutions.89 In these circumstances, the fact that state courts are called upon to interpret the actual provisions of Sharia law in the discharge of their official functions lends weight to the view that these provisions can be regarded as state law. The involvement of state courts in the interpretation of religious and customary law is clearly important in terms of the classification of the law. It also has broader significance for the potential bifurcation of the law. This is because state courts will draw on interpretive techniques and doctrines that may be alien to the bodies entrusted with interpreting these laws within the religious and indigenous communities in which the laws originate.90 For example, while customary law on the ground may be ‘dynamic and constantly evolving’,91 state courts may be unable to adopt an interpretation which reflects this reality due to the doctrine of binding precedent. Over time, these differences in interpretive techniques can produce substantive differences in the law itself.92 Where this occurs, it is no longer possible to refer to the concurrent classification of these laws as state and non-state law. Instead, two distinct bodies of law come into existence, state law and non-state law, which despite their common origins and apparent similarity are different. Failure to recognize this bifurcation of law can have important implications. At a practical level, it can create uncertainty among those to whom the (state and nonstate) law is addressed about the exact nature and scope of their rights and obligations. This, in turn, can undermine the efficacy of state law and even thwart the original intentions of the state legislator. This will often be the case where state recognition of religious or customary laws was intended to protect and promote the identity of distinct religious or ethnic communities within the state or ensure the more effective enjoyment of their human rights.93 At a more general level, this bifurcation can undermine the perceived legitimacy of state law within the religious or ethnic communities in question and affect their level of engagement with it. It is hardly surprising then that various techniques of a formal or informal nature are deployed in different jurisdictions to ensure some consistency in state and non-state interpretations of the law.94 It follows that when states decide to recognize religious or customary law as state law, they need to realize that this is just one step in the process. Careful consideration needs to be given to questions of 89 See C. B. Lombardi, ‘Designing Islamic Constitutions: Past Trends and Options for a Democratic Future’, International Journal of Constitutional Law 11 (2013): 615. 90 See e.g. W. Kamau, ‘Law, Pluralism and the Family in Kenya: Beyond Bifurcation of Formal Law and Custom’, International Journal of Law, Policy and the Family 23(2) (2009): 133, 138. 91 Ibid., 138. See also Perry (n. 79), 78–9. It should also be acknowledged that the interpretation of non-state law can vary even within the community: see e.g. M. A. Baderin, ‘An Analysis of the Relationship between Shari’a and Secular Democracy and the Compatibility of Islamic Law with the European Convention on Human Rights’, in R. Griffith-Jones (ed.), Islam and English Law: Rights, Responsibilities and the Place of Shari’a (Cambridge: Cambridge University Press, 2013), 72, 74–6. 92 See e.g. B. Connolly, ‘Non-State Justice Systems and the State: Proposals for a Recognition Typology’, Connecticut Law Review 38 (2005–6): 239, 285–6. 93 See e.g. the discussion in UNHRC, ‘Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples’ (2004) UN Doc E/CN.4/2004/80’. 94 On the range of formal and informal techniques employed, see Lombardi (n. 89), 627–35.

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Navigating Diffuse Jurisdictions 117 interpretation given the wider implications to which they can give rise. Specifically, consideration needs to be given to the nature and level of engagement between state and non-state bodies in interpreting the law, which body will be accorded primacy in discharging the interpretive function, and what techniques or strategies should be deployed in discharging that function.

IV.4. Enforcement of Norms The final point on the continuum relates to the enforcement of laws. This point has several strands. One is where the state’s executive or judicial organs enforce decisions of religious or customary courts. The question here is whether, on its own, this is sufficient to transform religious or customary law into state law. Recall the position in the United Kingdom where decisions of religious courts may be treated as a form of alternative dispute resolution (ADR) and enforced by state courts. Focusing exclusively on the enforcement of the decision by the state court, however, can result in a distorted classification of the religious law on which the decision is based.95 In this example, it is possible to argue that the state court is enforcing the agreement between the parties to resolve their dispute by means of ADR, subject always to the caveat that this does not violate fundamental principles of public policy. In view of this, it is questionable whether the religious or customary laws on which the original decision is based can be classified unequivocally as state law. It is necessary to look beyond the fact of enforcement and take account of all the surrounding circumstances before reaching a conclusion. If nonstate law is recognized by the state and/or interpreted by state courts, then this, in combination with enforcement by the state, would suggest that it is state law. It is only by interrogating what is being enforced in these circumstances that one can avoid falling into error when classifying religious or customary law. Enforcement may also be undertaken by religious or customary courts with or without the consent of the state. Where it is undertaken without the consent of the state, it is too tenuous to treat the de facto enforcement of religious or customary law on a state’s territory as being sufficient to classify this law as state law.96 In contrast, where enforcement is undertaken with the consent of the state, it may be possible to classify the religious or customary law enforced by the non-state entity as state law.97 There can be several 95 See also, R. Michaels, ‘The Re-State-Ment of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism’, Wayne Law Review 51 (2005): 1209, 1229–31. Referring (at 1229) to arbitral awards based on the application of lex mercatoria, he argues that an ‘arbitral award is enforced regardless of what law was applied. This is the opposite of an explicit endorsement of the applied normative order as “law”.’ 96 However, the state may be responsible for any failure to protect the human rights of an individual against interferences with these rights by the non-state court. 97 See e.g. the position of the Court of the Navaho Nation in the United States discussed in UNHRC, ‘Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples’, p. 19.

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118 Helen Quane reasons for this. One is that the entity may be regarded as exercising elements of governmental authority. If this is the position, then enforcement may be attributed to the state and it is possible to treat the law as though it is being enforced by the state itself. Here there is no ambiguity as to what exactly is being enforced. It is the religious or customary law of the community concerned. Hence, due to the enforcement of these laws by the non-state entity with the consent of the state, it is possible to classify them as state law. A similar conclusion can be arrived at if one focuses on coercion as the defining element of state law. Drawing on Kelsen’s theory, the severity or efficacy of the sanction is immaterial to the question of classification.98 Consequently, it does not matter whether the sanction imposed by the non-state entity entails the loss of liberty, physical punishment, or simply a public apology to the community concerned. It is the fact that the sanction can be imposed by these bodies with the consent of the state that determines the classification of the relevant laws. Even though the state is one step removed from the entity imposing the sanction, it is still possible to argue that ultimately the sanction is provided for by the state legal order and is socially organized. Once again, there is no ambiguity about what is being enforced. It is clearly the religious or customary laws of the community concerned and in view of the element of coercion, these laws can be regarded as state law. Arguably, while Kelsen’s approach to coercion is useful for the purposes of classification, it is too narrow. This is because coercion is viewed primarily in terms of a socially organized sanction provided for by the state legal order.99 There is insufficient consideration of coercion that may dictate the forum in which the law is enforced and, by implication, the range of socially organized sanctions available. For example, in several states today, the only way an individual can obtain a divorce is to institute proceedings before a religious court.100 The traditional view of coercion focuses on the sanctions that may be imposed during or at the end of the proceedings. However, it is possible to argue that sanctions come into play at an earlier stage, indeed, before the proceedings are even instituted. In the example given, if the individual does not institute divorce proceedings before the religious court, then s/he must remain married with all the attendant implications that this can have for the rights of that individual. It is submitted that the implications for the individual in not accessing the religious court are such that they constitute a form of coercion. In these circumstances, religious law can be classified as state law not only because the state consents to its enforcement by the religious court but also because it coerces the individual to submit to enforcement by that court. Whether one focuses on the element of coercion or the exercise of governmental authority, the law being enforced by the non-state entity with the consent of the state may 98 Kelsen (n. 13), 20, 23, 30. 99 Ibid., 20–1. There are exceptional circumstances where Kelsen would not equate coercion with sanctions, notably where coercion is used to prevent harm even though the individual concerned did not commit a delict (ibid., 279). 100 See e.g. the position of Muslims in Zanzibar discussed in M. J. Calaguas et al., ‘Legal Pluralism and Women’s Right: A Study in Postcolonial Tanzania’, Columbia Journal of Gender and Law 16 (2007): 471, 472, 538.

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Navigating Diffuse Jurisdictions 119 be classified as a form of state law. While there can be several reasons for a state to allow non-state entities to exercise some enforcement functions,101 it is important to recognize the implications of doing so. At the very least, it means that the law being enforced by non-state entities in these circumstances can be regarded as state law. As a form of state law, the state must ensure that it is enforced in a non-discriminatory manner.102 This requires the state to consider carefully the measures that will be needed to address the variations that will inevitably arise both between and among non-state and state bodies in the enforcement of the law. This will be a significant challenge for states even when one acknowledges that variations are only discriminatory when there is no reasonable and objective justification for the difference in treatment.103 Nevertheless, classifying the law as state law means that the state must ensure that not only is there reasonable and objective justification for any differences in enforcement but that this justification remains valid over time. It means that the state must remain seized of the situation. Contrary to what can occur at present,104 the state cannot grant enforcement powers to non-state bodies and then effectively walk away from the enforcement of what is, in fact, state law within the communities concerned.

V. Conclusion Legal pluralism is no longer a historical anachronism found in former colonial countries or confined to theocratic states. It is a feature of most, if not all, state jurisdictions today. Its pervasiveness can be attributed to a range of factors including the rise of identity politics and the accompanying clamour for state recognition of religious and customary law as well as state acquiescence in the regulation of a wide range of activities such as sport, financial transactions, and professional standards by non-state actors. Legal pluralism is a phenomenon that is set to become more rather than less pronounced in the coming years. Yet, it is one that has received limited attention from the perspective of international law. While there is widespread recognition of the fact that non-state actors 101 E.g. increasing access to justice in geographically remote and resource constrained areas, respecting the right to self-determination of indigenous peoples, maintaining social harmony in culturally diverse societies. 102 Virtually all states are bound by at least one international human rights treaty which contains a non-discrimination clause. See e.g. Report by the UN High Commissioner for Human Rights, Navanethem Pillay, Strengthening the United Nations Human Rights Treaty Body System (2012), 17–18, available at http://www2.ohchr.org/english/bodies/HRTD/docs/HCReportTBStrengthening.pdf. 103 On the definition of discrimination, see e.g. UN Human Rights Committee, General Comment No. 18 in Note by the Secretariat, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev. 7 (2004). 104 This is evident from the numerous recommendations made by the UN Human Rights Treaty Bodies calling on states to ensure that religious and customary law does not discriminate and is compatible with human rights: see e.g. UN Docs. CRC/C/15/Add.221 (2003); CEDAW/C/VUT/CO/3 (2007); CRC/C/ BOL/CO/4 (2009); CEDAW/C/KEN/CO/7 (2011).

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120 Helen Quane can raise profound issues for the state-centred international legal order,105 far less attention is paid to the distinct issues raised by regulation by non-state actors. This is particularly so when one considers regulation by religious or traditional communities. The tendency to view religious or customary law as predominantly a matter for municipal legal systems masks the important issues it raises for the international legal system. This chapter explores some of these issues, focusing on religious and customary forms of non-state law and their implications specifically from the perspective of state responsibility and international human rights law. What becomes readily apparent is the need to delineate the boundaries between state and non-state law in order to calibrate and make more explicit these implications. Given the extent to which non-state law can become enmeshed in state legal systems this is a complex task. Traditionally, the emphasis has been on coercion or the ‘state’ in determining the classification of law as state law and, by implication, the boundary between state and non-state law. Given such a broad-brush approach to classification, it is hardly surprising that one encounters extensive and often erroneous claims being made about the status of various forms of religious or customary law within state legal systems. To avoid such pitfalls, this chapter proposes an original and more calibrated approach to the question of classification, one that broadens and deepens the scope of the enquiry. Based on the prescriptive, adjudicative, and enforcement functions that are integral to the operation of state legal systems, it formulates a highly desegregated and context-dependent approach to the classification of laws. By analysing the extent to which religious or customary laws are engaged by the discharge of one or more of these functions, it is possible to assess if these laws should be classified as state law. What emerges from this approach is that laws can have a concurrent classification as state and non-state law and one needs to be alert to this possibility when considering the interpretation, application, and possible reform of the law. Further, it demonstrates that there can be functional, personal, temporal, and geographical dimensions to the classification of law106 and that the boundaries between state and non-state law can be diffuse and susceptible to shifting over time. Above all, this chapter makes explicit the need to probe more deeply into the municipal arena to draw out the international law implications where legal pluralism exists and the nature and extent of a state’s exercise of jurisdiction is far from certain.

105 See n. 5. On the impact of non-state actors on jurisdiction in international law, see A. Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84 (2014): 187–239. 106 E.g. the state may permit the use of religious law to regulate clearly defined matters, the behaviour of members of a particular community, or in a particular region or for a particular period of time.

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Chapter 7

J u r isdictiona l Plu r a lism Paul Schiff Berman*

I. The Problem of Territoriality

122

II. Jurisdiction and Deterritorialization

127

III. Jurisdiction and Cultural Change

128

IV. Jurisdiction and Relative Authority

137

V. Jurisdiction and Alternative Norms

140

VI. A Cosmopolitan Pluralist Vision of Jurisdiction

142

VII. Jurisdiction, Jurispersuasion, and Contestation

145

VIII. Building Governance Structures to Accommodate Jurisdictional Pluralism

153

IX. Conclusion

159

* Some material in this chapter is derived from Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge University Press, 2012), which provides a more detailed discussion of the issues outlined here. Special thanks to Ashley McLaughlin Leen and Samuel Wenzel for excellent research assistance in the final stages of preparing this chapter.

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122 Paul Schiff Berman International law has often treated questions of jurisdiction as primarily exercises in line-drawing and the division of power among nation states. For example, states are classically conceptualized as having total jurisdictional authority within their fixed and assigned territorial borders but no power beyond them. In reality, this formalist conception of jurisdiction has never been accurate. First, governmental power is nearly always relative, not absolute. Therefore, authorities asserting jurisdiction must navigate in relation to other norm-generating communities—local, transnational, and international; state, and non-state—that contest such assertions. Second, territorial borders have always been far more vague and permeable than they are usually conceptualized. In addition, a relevant physical location on which to affix jurisdiction can often be difficult to pinpoint, particularly in an era of electronic communication, multinational corporate activities, transnational migration, religiously and ethnically diverse populations, and cross-border environmental and other harms. Third, assertions of jurisdiction need not be coterminous with actual enforcement power. Indeed, the word ‘jurisdiction’ comes from the Latin ‘juris dicere’ which means ‘to speak the law’, not necessarily to enforce it. Thus, many communities—and not just nation states—assert jurisdiction in order to speak the language of law on the world stage. How persuasive such assertions of jurisdiction prove to be depends on political and sociological factors as much as formal territorial and legal ones. In short, rather than being merely a fixed set of territorially based legal rules, jurisdiction has always been a terrain of engagement among multiple overlapping communities and an ongoing site for contestation and legal pluralism. Given the reality of jurisdictional pluralism, we need a broader sociological, anthropological, and historical lens for understanding what jurisdiction is, the roles jurisdiction plays in contests about authority and community definition, and the possibility of developing a more cosmopolitan pluralist vision of jurisdiction, one that is less bound to territory and more based on community affiliation. We also need to understand that jurisdictional contestation and conflict is ever-present and could even be beneficial, as voices unheard in one jurisdiction can gain leverage and power in another. This chapter sets forth the sorts of inquiries that must be part of this broader view of jurisdiction. And though it does not attempt to find fixed ‘answers’ to particular jurisdictional debates, it does provide a framework for conceptualizing jurisdiction in the twenty-first century, a time when social lives are increasingly deterritorialized and problems of governance require productive communication across difference, rather than an insistence on absolute, territorially based, sovereign prerogative.

I. The Problem of Territoriality Legal discussions of jurisdiction are often predicated on a seemingly unproblematic division of space, particularly on the idea that societies, nations, and cultures occupy ‘naturally’ discontinuous territorial locations. This assumption ignores the possibility

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Jurisdictional Pluralism 123 that territorial jurisdiction often produces political and social identities rather than reflecting them.1 Nevertheless, the assumption that a culturally unitary group (a ‘tribe’ or a ‘people’ or even a ‘citizenry’) is naturally tied to ‘its’ territory is difficult to shake because such assumptions are so deeply ingrained in the modern consciousness.2 For example, simply the fact that contemporary maps refer to a collection of ‘countries’ constructs a picture of space as inherently fragmented along territorial lines, where different colours correspond to different national societies, all of which are made to seem fixed in place.3 Looking at such maps, ‘schoolchildren are taught such deceptively simple-sounding beliefs as that France is where the French live, America is where the Americans live, and so on’.4 Yet we all know that not only Americans live in America and, of course, the very question of what constitutes a ‘real American’ is contested and variable. Nonetheless, ‘we assume a natural association of a culture (“American culture”), a people (“Americans”), and a place (“the United States of America”)’, and we therefore ‘present associations of people and place as solid, commonsensical, and agreed on, when they are in fact contested, uncertain, and in flux’.5 This naturalization of jurisdiction means that ‘space itself becomes a kind of neutral grid on which cultural difference, historical memory, and societal organization [are] inscribed’.6 As a result, although the social and political construction of space is a fundamental aspect of legal ordering, the constructed nature of the enterprise disappears from analytical purview.7 In recent decades, critical geographers have increasingly recognized the power and politics of the construction of space in society8 as well as the symbolic significance of 1 Richard T. Ford, ‘Law’s Territory (A History of Jurisdiction)’, Michigan Law Review 97 (1999): 843, 844 (‘Jurisdictions define the identity of the people that occupy them.’). As Henri Lefebvre has observed, ‘Space is not a scientific object removed from ideology or politics; it has always been political and strategic.’ Henri Lefebvre, ‘Reflections on the Politics of Space’, trans. Michael J. Enders, Antipode 8 (1979): 30, 31. 2 Akhil Gupta and James Ferguson, ‘Beyond “Culture”: Space, Identity, and the Politics of Difference’, in Akhil Gupta and James Ferguson (eds.), Culture, Power, Place: Explorations in Critical Anthropology (Durham: Duke University Press, 1997), 33, 40 (challenging ‘the national habit of taking the association of citizens of states and their territories as natural’). 3 Ibid., 34; Ford (n. 1), 866–7 (linking the emergence of jurisdiction to the development of cartography). 4 Gupta and Ferguson (n. 2), 40. 5 Ibid. 6 Ibid., 34. 7 Ford (n. 1), 854 (observing that ‘jurisdictional space may serve to obscure social relations and the distribution of resources’). 8 Nicholas K. Blomley, Law, Space, and the Geographies of Power (New York: The Guilford Press, 1994), 42 (‘Recent geographic scholarship . . . has adopted what might be regarded as a relational view of space. Drawing on those such as Lefebvre, some theorists regard space as both socially produced and as socially constitutive, and as deeply implicated in power relations . . .’ (citation omitted)). For examples of such critical geography, see John A. Agnew, Place and Politics: The Geographical Mediation of State and Society (London: Routledge, 1987); Alexander B. Murphy and Douglas L. Johnson (eds.) with the assistance of Viola Haarmann, Cultural Encounters with the Environment: Enduring and Evolving Geographic Themes (Lanham, MD: Rowman and Littlefield 2000); Allan Pred, Making Histories and Constructing Human Geographies: The Local Transformation of Practice, Power Relations, and Consciousness (Boulder, CO: Westview Press, 1990); Allan Pred and Michael John Watts, Reworking Modernity: Capitalisms and Symbolic Discontent (New Brunswick, NJ: Rutgers University Press, 1992); Edward W. Soja, Postmodern Geographies: The Reassertion of Space in Critical Social Theory (New York: Verso, 1989); Thongchai Winichakul, Siam Mapped: A History of the Geo-Body of a Nation (Honolulu: University of Hawaii Press,

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124 Paul Schiff Berman maps.9 Maps often function as ‘almost the perfect representation[s] of the state’.10 Most maps both evenly cover the territory of a country and hierarchically organize it with the most significant places ‘symbolically at the center, and . . . states on the periphery marked down, through the use of symbols, as inferior orders of government’.11 In addition, many social and cultural groupings—such as ethnic or religious ties—might not be reflected in state-sponsored maps at all.12 These cartographic ‘silences’13 may be the result of ‘deliberate exclusion, willful ignorance, or even actual repression’.14 As contemporary debates about the distortions caused by various ‘projections’ of the world make clear,15 our cartographic representations are socially constructed and politically fraught.16 1997); Doreen Massey, ‘Politics and Space/Time’, New Left Review 196 (1992): 65; Allan Pred, ‘Place as Historically Contingent Process: Structuration and the Time-Geography of Becoming Places’, Annals of the Association of American Geographers 74 (1984): 279; N. J. Thrift, ‘On the Determination of Social Action in Space and Time’, Environment and Planning D: Society and Space 1 (1983): 23. 9 Thongchai (n. 8), 129–30 (‘[Mapping] became a lethal instrument to concretize the projected desire on the earth’s surface . . . A map anticipated a spatial reality, not vice versa. In other words, a map was a model for, rather than a model of, what it purported to represent.’); Alan K. Henrikson, ‘The Power and Politics of Maps’, in George J. Demko and William B. Wood (eds.), Reordering the World: Geopolitical Perspectives on the 21 Century (Boulder, CO: Westview Press, 1994), 49 (‘To formulate a political plan, diplomats must have a geographical conception, which requires the cartographic image of a map.’). Indeed, maps are often persuasive precisely because, though they always constitute an attempt to portray the world in a specific way, the interests underlying that attempt tend to remain unacknowledged. Diane M. Bolz, ‘Follow Me . . . I Am the Earth in the Palm of Your Hand’, Smithsonian (February 1993): 112, 113 (‘[Maps] are convincing because the interest they serve is masked.’); Denis Wood with John Fels, The Power of Maps (New York: The Guilford Press, 1992), 1 (discussing the ability of maps to represent the past and the interests served in their creation). In the thrall of such ‘cartohypnosis’, people ‘accept subconsciously and uncritically the ideas that are suggested to them by maps’. S. W. Boggs, ‘Cartohypnosis’, US Department of State Bulletin 15 (1946): 1119, 1119; Ford (n. 1), 856 (‘[J]urisdiction is a function of its graphical and verbal descriptions; it is a set of practices that are performed by individuals and groups who learn to “dance the jurisdiction” by reading descriptions of jurisdictions and by looking at maps.’). 10 Henrikson (n. 9), 59. 11 Ibid. 12 Ibid.; Ford (n. 1), 853 (observing that jurisdictional lines tend to define an abstract area that is ‘conceived . . . independently of any specific attribute of that space’). 13 J. B. Harley, ‘Silences and Secrecy: The Hidden Agenda of Cartography in Early Modern Europe’, Imago Mundi 40 (1988): 57, 57 (describing ‘the dialogue that arises from intentional or unintentional suppression of knowledge in maps’). 14 Henrikson (n. 9), 59. For example, the removal or alteration of the place names of conquered peoples or minority groups establishes a silence of subordination. Harley (n. 13) (‘Conquering states impose a silence on minority or subject populations through their manipulation of place names.’). As one commentator has observed, cartography has always been ‘a teleological discourse, reifying power, reinforcing the status quo, and freezing social interaction within charted lines’. J. B. Harley, ‘Maps, Knowledge, and Power’, in Denis Cosgrove and Stephen Daniels (eds.), The Iconography of Landscape: Essays on the Symbolic Representation, Design and Use of Past Environments (Cambridge University Press, 1988), 277, 302–3. 15 Arno Peters, The Europe-Centered Character of Our Geographical View of the World and Its Correction (Munich-Solln: Universum Verlag, 1979) (analysing the size and position of countries on world maps and the Euro-centrism inherent in such maps); Arthur H. Robinson, ‘Arno Peters and His New Cartography’, American Cartographer 12 (1985): 103 (criticizing the ‘Peters Projection’); Henrikson (n. 9), 63–4 (describing the ‘battle of the maps’ pitting the Peters projection against the Mercator projection). 16 J. M. Roberts, The Triumph of the West (London: BBC, 1985), 127 (‘Maps . . . are always more than mere factual statements. They are translations of reality into forms we can master; they are fictions and acts of imagination communicating more than scientific data. So they reflect changes in our pictures of reality.’).

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Jurisdictional Pluralism 125 Indeed, ‘[a]lthough the color map of the political world displays a neat and ordered pattern of interlocking units (with only a few lines of discord), it is not surprising that the real world of national identities is one of blotches, blends, and blurs’.17 First, many people inhabit border areas, where ‘[t]he fiction of cultures as discrete, object-like phenomena occupying discrete spaces becomes implausible’.18 Such people may feel an affiliation with the state controlling the area, the nation with which most inhabitants identify, or the borderland itself.19 Second, many others live a life of border crossings: migrant workers, nomads, and members of the transnational business and professional elite. For these people, it may be impossible to find a unified cultural identity. For example, ‘[w]hat is “the culture” of farm workers who spend half a year in Mexico and half in the United States?’20 Finally, many people cross borders on a relatively permanent basis, including immigrants, refugees, exiles, and expatriates.21 For them, the disjuncture of place and culture is especially clear. Immigrants invariably transport their own culture with them to the new location and, almost as invariably, shed certain aspects of that culture when they come into contact with their new communities. Diasporas therefore are both ‘transnational’ because members of a single diaspora may live in many different countries, and ‘extremely national’ in their continued cultural and political loyalty to a homeland.22 Indeed, such clashes of former culture and present community have led to 17 David H. Kaplan, ‘Territorial Identities and Geographic Scale’, in Guntram H. Herb and David H. Kaplan (eds.), Nested Identities: Nationalism, Territory, and Scale (Lanham, MD: Rowman and Littlefield, 1999), 31, 35. 18 Gupta and Ferguson (n. 2), 34. 19 Anssi Paasi, Territories, Boundaries and Consciousness: The Changing Geographies of the FinnishRussian Border (New York: Wiley, 1996) (studying the territorial and social consequences of imposed frontiers); Jena Gaines, ‘The Politics of National Identity in Alsace’, Canadian Review of Studies in Nationalism 21 (1994): 99 (discussing cultural issues emerging in Alsace resulting from the FrenchGerman struggles in the region); Oren Yiftachel, ‘Regionalism Among Palestinian-Arabs in Israel’, in Guntram H. Herb and David H. Kaplan (eds.), Nested Identities: Nationalism, Territory, and Scale (Lanham, MD: Rowman and Littlefield, 1999), 237, 237 (addressing ‘the role of territory, geographical scale, and location as complementing other factors in the political mobilization and identity formation among the Arabs’). Residents of borderland regions, because they are often so physically removed from the state center, are often psychologically, as well as physically, isolated. Stein Rokkan and Derek Urwin, Economy, Territory, Identity: Politics of West European Peripheries (London: Sage, 1983), 3 (‘When we say that one area is peripheral to another, this is not just an abstract matter of geographical location: the peripherality will be expressed concretely in the daily life of the inhabitants of the area, and in the nature of their links with groups in the centre.’). These regions, therefore, provide fertile ground for the introduction of disparate cultural influences. Not surprisingly, states often put extra effort into securing border communities both culturally and ideologically. For example, the Dominican Republic forcibly expelled Haitians from border communities and then attempted to re-educate the remaining population to make the region more ‘Dominican’. John P. Augelli, ‘Nationalization of Dominican Borderlands’, Geographical Review 70 (1980): 19, 24 (‘[T]he basic aims of the nationalization program were to stamp the Dominican national identity on both people and land of the frontier provinces . . . ’); George W. White, ‘Transylvania: Hungarian, Romanian, or Neither?’, in Guntram H. Herb and David H. Kaplan (eds.), Nested Identities: Nationalism, Territory, and Scale (Lanham, MD: Rowman and Littlefield, 1999), 267, 280–4 (discussing efforts by the Romanian and Hungarian states to eradicate the national influences of the other in the borderland of Transylvania). 20 Gupta and Ferguson (n. 2), 34. 21 Ibid. 22 Kaplan (n. 17), 38; Gabriel Sheffer (ed.), Modern Diasporas in International Politics (New York: St. Martin’s, 1986) (examining the influence of ethnic diasporas on international and trans-state politics).

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126 Paul Schiff Berman questions about the so-called ‘cultural defence’ to certain crimes.23 And the divided loyalty of diaspora communities can cause host countries to view members of these communities as potential threats.24 By creating communities of interest rather than place, diasporas (the number of which is increasing due largely to labour immigration)25 pose an implicit threat to territorially based nation states.26 And of course, large numbers of displaced people end up in refugee camps that become like stateless states, sometimes housing multiple generations over decades. In sum, we see that ‘[p]rocesses of migration, displacement and deterritorialization are increasingly sundering the fixed association between identity, culture, and place’.27

23 So-called ‘cultural defences’ use evidence about a defendant’s cultural background to negate or to mitigate criminal liability (with a concomitant sentence reduction). For example, in one early use of a cultural defence in the United States, a court in Fresno, California took into account a husband’s tribal custom of marriage by capture (which involves the kidnap and rape of an intended wife) in permitting a guilty plea to misdemeanour false imprisonment rather than rape and kidnapping. Rorie Sherman, ‘ “Cultural” Defenses Draw Fire’, National Law Journal (17 April 1989): 3 (reporting recent usage of the ‘cultural defence’, including the Fresno case, People v Moua, No. 315972 (Cal. Super. Ct 1985)). To its supporters, the ‘cultural defense is an argument for tolerance of foreign cultures due to a lack of moral basis for punishment’. Andrew M. Kanter, Note, ‘The Yenaldooshi in Court and the Killing of a Witch: The Case for an Indian Cultural Defense’, South California Interdisciplinary Law Journal 4 (1995): 411, 413. However, others view such defences as unacceptable deference to illiberal cultural traditions or as condescension to those traditions. Taryn F. Goldstein, Comment, ‘Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a “Cultural Defense?” ’, Dickinson Law Review 99 (1994): 141, 144 (‘Permitting the defense promotes an unfair policy towards the majority to whom the defense is unavailable, and the defense violates principles of legality . . . [O]pponents assert that a recognition of the cultural defense would, in essence, condone and even encourage[] the violence toward women that is practiced throughout the world.’); Neal A. Gordon, ‘Note: The Implications of Memetics for the Cultural Defense’, Duke Law Journal 50 (2011): 1809, 1831 (‘The cultural defense is . . . condescending toward other cultures—it excuses action based on foreign cultures by likening it to insanity . . . [T]he defense isolates cultural groups with a patronizing wink. This isolation may lead in turn to a balkanized law and reinforce the idea that minorities should be treated differently.’). Of course, there are many further questions about what gets presented as ‘culture’ and why, as well as the relationship between supposed rationality on the one hand and assumed cultural imperatives on the other. Leti Volpp, ‘(Mis)Identifying Culture: Asian Women and the “Cultural Defense” ’, Harvard Women’s Law Journal 17 (1994): 57, 58 (‘The “cultural defense” presents several complex problems inherent in essentializing a culture and its effect on a particular person’s behavior.’). 24 Kaplan (n. 17), 38 (noting that host communities ‘remain circumspect about any external loyalties and identities’). 25 Ibid. 26 Robin Cohen, ‘Diasporas and the Nation-State: From Victims to Challengers’, International Affairs 72 (1996): 507, 517 (suggesting that people primarily identify with others based on shared opinions, tastes, ethnicities, religions, and other interests and are indifferent towards their nation state); James Clifford, ‘Diasporas’, Cultural Anthropology 9 (1994): 302, 307 (‘Diasporas are caught up with and defined against . . . the norms of nation-states . . . ’). For a provocative attempt to frame a ‘diasporan model’ of citizenship and the nation state, see Anupam Chander, ‘Diaspora Bonds’, New York University Law Review 76 (2001): 1005. 27 Akhil Gupta, ‘The Song of the Nonaligned World: Transnational Identities and the Reinscription of Space in Late Capitalism’, in Akhil Gupta and James Ferguson (eds.), Culture, Power, Place: Explorations in Critical Anthropology (Durham: Duke University Press, 1997), 179, 196.

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Jurisdictional Pluralism 127

II. Jurisdiction and Deterritorialization Territoriality is especially problematic in a world where social lives are increasingly unmoored from physical location. This deterritorialization arises in part from s uccessive waves of technological innovation that have repeatedly transformed human conceptions of space, place, and proximity. In the nineteenth and twentieth centuries, new developments in rail, motor, and air travel shrank the sense of physical distance. Communications technologies such as the telegraph, the telephone, and the internet allowed data to move across territorial boundaries with increasing ease. And twenty-first-century developments in social media, virtual worlds, augmented reality, electronic financial transactions, drones, robotics, and artificial intelligence allow human beings to interact in more and more robust ways at a physical remove from their location. Meanwhile, the ubiquity of multinational corporations, global supply chains, and cloud-based data all mean that our lives are more likely to be affected by activity that is spatially distant. As a thought experiment, one can imagine an ‘effects map’, in which one identifies a territorial locality and plots on a map every action that has an effect on that locality.28 Five hundred years ago, such effects would almost surely have been clustered around the territory, with perhaps some additional effects located in a particular distant imperial location. A hundred years ago, those effects might have begun spreading out. But today, while locality is surely not irrelevant, the effects would likely be diffused over many corporate, governmental, technological, and migratory centres. The deterritorialization of effects is felt on an everyday, intuitive level. For example, Anthony Giddens noticed as far back as 1990 that the ‘local’ shopping mall is not experienced as truly local at all; nearly ‘everyone who shops there is aware that most of the shops are chain stores’, identical to stores elsewhere and that the mall itself closely resembles innumerable other malls around the globe.29 Thus, while experiencing a ‘local’ place, we recognize the absent forces that structure our experience. Such forces include the steady decline in local ownership of public spaces, which can itself be linked to the globalization of capital. And now even the mall is too territorial; shopping is increasingly moving wholly online. We may also feel the growing significance of ‘remote’ forces on our lives, whether those forces are multinational corporations, world capital markets, or distant bureaucracies. As John Tomlinson observed nearly two decades ago, ‘People probably come to include distant events and processes more routinely in their perceptions of what is significant for their own personal lives. This is one aspect of what deterritorialization may

28 This thought experiment is articulated in David G. Post, ‘Against “Against Cyberanarchy” ’, Berkeley Technology Law Journal 17 (2002): 1365, 1371–3. 29 Anthony Giddens, The Consequences of Modernity (Stanford University Press, 1990), 140–1.

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128 Paul Schiff Berman involve: the ever-broadening horizon of relevance in people’s routine experience . . . ’30 And, of course, those with less power to influence the processes of globalization—those forced to cross borders for work, those bankrupted through global competition, those losing jobs due to off-shoring, those affected by environmental degradation, and many others—experience this deterritorialization in even more insidious ways. Finally, though the effects may sometimes seem to flow in only one direction (industrialized centres affecting non-industrialized peripheries), one need only consider migratory labour patterns and immigration; the rapid spread of diseases such as Ebola, the Zika virus, or avian flu; and the bi-directional impact of labour out-sourcing to realize that deterritorialization affects us all. Certainly, an inchoate sense of being buffeted by the forces of the global ‘system’ is one aspect of the populist backlash to the established m ultinational order that we have seen across Europe, the United Kingdom, and the United States since at least 2010. These various trends have a significant impact on law for two reasons. First, law is a social product, and therefore changing social realities of any sort create the context for legal change. Second, and more specific to these deterritorialization trends, law has historically been tied to physical territory. Indeed, the core idea of legal jurisdiction is often premised on territorial location and the delineated borders that are thought to separate distinct governmental entities and legal regimes. Accordingly, any set of social changes that alters both the perception and the reality of space, distance, location, territory, travel, and effects is bound to put pressure on legal regimes, creating tensions, uncertainties, and transformations.

III. Jurisdiction and Cultural Change Most debates about legal jurisdiction (and choice of law) tend to revolve around either political theory questions about when a judicial or administrative exercise of authority is legitimate, or legal policy questions about the most efficient or effective system for solving specific legal dilemmas. There is more to the assertion of jurisdiction or the extraterritorial imposition of norms, however, than simply questions of political legitimacy or efficient dispute resolution. The assertion of jurisdiction, like all legal acts, can also be viewed as a meaning-producing cultural product. What does it mean, after all, to say that some person, corporation, or activity is subject to a community’s jurisdiction? And how does the idea of jurisdiction relate to conceptions of geographic space, community membership, citizenship, boundaries, and self-definition? Although largely ignored in debates over jurisdiction, these foundational issues must be considered

30 John Tomlinson, Globalization and Culture (Cambridge: Polity Press, 1999), 115.

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Jurisdictional Pluralism 129 s eriously if we are to develop a richer descriptive account of the role of legal jurisdiction in a deterritorialized world of interaction.31 It has become a commonplace for cultural critics and others to identify the ways in which social structures shape and constrain conduct, yet the link between social structures and physical spaces has received less attention.32 Nevertheless, ‘[t]he production of space and place is both the medium and the outcome of human agency and social relations’.33 This cultural construction of space includes the boundaries drawn between ‘public’ and ‘private’ spaces; the decisions a community makes about land use and zoning; the appropriation and transformation of ‘nature’ as both a concept and as a physical description; the local autonomy of governmental units; the use of specialized locations for the conduct of economic, cultural, and social practices; the creation of patterns of movement within a community; and ‘the formation of symbolically laden, meaningfilled, ideology-projecting sites and areas’.34 In addition, topological space, which consists of the formal boundary lines we have chosen, is distinctively different from social space, which includes the meanings given to space (both local and nonlocal), to the distances between delineated spaces, and to the time necessary to traverse those distances.35 For example, a 100-mile automobile trip may seem like a greater journey to residents of the north-eastern United States, who are accustomed to relatively short distances between destinations, than to residents of the West, where cities and towns are more dispersed. Similarly, a 1,000-mile trip carries a very different social meaning today, in the age of relatively inexpensive air travel, than it did one hundred years ago, even if the physical distance remains the same.36 And of course mid-twentieth-century demographic shifts from city to suburb were not merely changes of topology, but politically and symbolically significant cultural transformations.37 More recent global migrations from rural communities to urban mega-centres likewise are culturally transformative events.

31 A broader discussion of these issues can be found in Paul Schiff Berman, ‘The Globalization of Jurisdiction’, University of Pennsylvania Law Review 151 (2002): 311. 32 For two notable exceptions within legal scholarship, see Terry S. Kogan, ‘Geography and Due Process: The Social Meaning of Adjudicative Jurisdiction’, Rutgers Law Journal 22 (1991): 627); Ford (n. 1). Kogan’s work specifically addressed the social significance of adjudicative jurisdiction and so is particularly relevant here. My discussion in this subsection is heavily indebted to Kogan’s argument. 33 Pred (n. 8), 10. 34 Ibid. 35 Kogan (n. 32), 634. 36 John Tomlinson describes this shift as follows: In a globalized world, people in Spain really do continue to be 5,500 miles away from people in Mexico, separated, just as the Spanish conquistadors were in the sixteenth century, by a huge, inhospitable and perilous tract of ocean. What connectivity means is that we now experience this distance in different ways. We think of such distant places as routinely accessible, either representationally through communications technology or the mass media, or physically, through the expenditure of a relatively small amount of time (and, of course, of money) on a transatlantic flight. So Mexico City is no longer meaningfully 5,500 miles from Madrid: it is eleven hours’ flying time away. Tomlinson (n. 30), 4. 37 Joel Garreau, Edge City: Life on the New Frontier (New York: Anchor, 1992).

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130 Paul Schiff Berman In addition, the construction of legal spaces and the delineation of boundaries are always embedded in broader social and political processes.38 ‘Legal categories are used to construct and differentiate material spaces which, in turn, acquire a legal potency that has a direct bearing on those using and traversing such spaces.’39 For example, in the history of European conquest of Australia, the naming of particular spaces—rivers, mountains, capes, bays, and so on—became a central point of political contest.40 The Europeans believed that the aboriginals did not classify or name the landscape and transformed that purported ‘spatial deficiency’ into a ‘legal deficiency’: if the aboriginals did not name their places, so the thinking went, their ‘grasp of it [was] so tenuous . . . [that] it was hardly a crime to take possession of it’.41 To take another example, Jeremy Waldron has observed that increasing restrictions on the use of public spaces for activities such as sleeping or washing denies homeless people any opportunity to perform those acts because there is neither a public nor a private space to do so.42 The social meaning of geographical space also includes the way in which an individual or community perceives those who are outside the community’s topological or social boundaries. As people develop attitudes of familiarity towards the spaces in which they reside and conduct their daily activities, they may also come to view unfamiliar people and locations as frighteningly alien. Alternatively, the outside ‘other’ can be seen as inviting, friendly, and hospitable, or as mysterious, exotic, and romantic.43 There are a seemingly infinite variety of attitudes one may hold towards unfamiliar social spaces. Such attitudes are embedded in context and shaped and influenced by manifold factors, including politics, socio-economic relationships, and the extent of contact that one has with the ‘other’.44 38 Blomley (n. 8), xi (‘The legal representation of space must be seen as constituted by—and in turn constitutive of—complex, normatively charged and often competing visions of social and political life under law.’). 39 Ibid., 54. 40 Paul Carter, The Road to Botany Bay: An Exploration of Landscape and History (New York: Alfred A. Knopf, 1988) (describing European exploration and subsequent naming of various Australian geographical features). 41 Ibid., 64; Robert D. Sack, Human Territoriality: Its Theory and History (Cambridge University Press, 1986), 6–8 (describing similarly loose conceptions of territoriality among members of the Chippewa tribe at the time Europeans settled in the United States). 42 Jeremy Waldron, ‘Homelessness and the Issue of Freedom’, UCLA Law Review 39 (1991): 295, 315 (‘Since private places and public places between them exhaust all the places that there are, there is nowhere that these actions [such as sleeping] may be performed by the homeless person.’). 43 As Stuart Hall has described: To be English is to know yourself in relation to the French, and the hot-blooded Mediterraneans, and the passionate, traumatized Russian soul. You go round the entire globe: when you know what everybody else is, then you are what they are not. Identity is always, in that sense, a structured representation which only achieves its positive through the narrow eye of the negative. Stuart Hall, ‘The Local and the Global: Globalization and Ethnicity’, in Anthony D. King (ed.), Culture, Globalization and the World-System: Contemporary Conditions for the Representation of Identity (Minneapolis: University of Minnesota Press, 1997), 19, 21. 44 Kogan (n. 32), 637.

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Jurisdictional Pluralism 131 Thus, jurisdictional rules have never simply emerged from a utilitarian calculus about the most efficient allocation of governing authority. Rather, the exercise of jurisdiction has always been part of the way in which societies demarcate space, delineate communities, and draw both physical and symbolic boundaries. Such boundaries do not exist as an intrinsic part of the physical world; they are a social construction. As a result, the choice of jurisdictional rules reflects the attitudes and perceptions members of a community hold towards their geography, the physical spaces in which they live, and the ways in which they define the idea of community itself. In order to convey this basic concept, it might be useful to give an admittedly oversimplified, functionalist account of a series of changes in US jurisdictional rules over time. In the nineteenth century, both jurisdictional and choice-of-law rules in the United States were grounded in the territorial power of the sovereign. Thus, each sovereign was deemed to have jurisdiction, exclusive of all other sovereigns, to bind persons and things present within its territorial boundaries. In 1877 the United States Supreme Court determined that this territorially based principle was an inherent part of constitutional due process itself. In Pennoyer v Neff,45 the Court ruled that ‘[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum . . . an illegal assumption of power, and be resisted as mere abuse.’ Thus, although ‘every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory . . . no State can exercise direct jurisdiction and authority over persons and property without its territory’. The Pennoyer decision reflected a conception of jurisdiction based on territorial borders and pure power. The underlying message was: if a state can seize you, it can have power over you; if it can seize your property, it can have power over your property. Thus, the limits of judicial power under Pennoyer were rigidly defined by the physical boundaries of each state. Choice-of-law rules were similar. The prevailing ‘vested rights’ theory of the era sought to locate all disputes spatially by identifying the physical location of the essential act that was deemed to constitute the cause of action. Applying the vested rights approach, judges looked to the place of the tort,46 or the place of contracting,47 or the location of the property at issue.48 Having ‘localized’ the cause of action, only the state where the cause of action ‘vested’ could apply its law to the dispute.49 Such localization effectively avoided 45 95 US 714 (1877). 46 Restatement (First) of the Law of Conflict of Laws, §378 (‘The law of the place of wrong determines whether a person has sustained a legal injury.’). 47 Joseph Beale, A Treatise on the Conflict of Laws, 3 vols. (New York: Baker, Voorhis & Co., 1935), II, 1091 (‘The question whether a contract is valid . . . can on general principles be determined by no other law than that which applies to the acts, that is, by the law of the place of contracting . . . If . . . the law of the place where the agreement is made annexes no legal obligation to it, there is no other law which has power to do so.’). 48 Ibid., 938 (finding that immovable property, ‘being unable to be taken away from the state in which [it is located], must always in the last analysis be governed by the laws of that state’). 49 Beale (n. 20), 64 (‘[T]he chief task of the Conflict of Laws [is] to determine the place where a right arose and the law that created it . . . ’).

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132 Paul Schiff Berman any consideration of multiple norms or communities because it placed all disputes within a single, territorially delineated framework. These territorially based jurisdictional and choice-of-law principles derive in part from a particular understanding of social space in the United States at that time. As historian Robert Wiebe has famously observed, ‘America during the nineteenth century was a society of island communities.’50 With weak communication and limited interaction, these ‘islands’ felt widely dispersed, and it is not surprising that local autonomy became ‘[t]he heart of American democracy’.51 Even though France had long since developed a centralized public administration, Wiebe argues that Americans still could not even conceive of a distant managerial government. In such a climate, geographical loyalties tended to inhibit connections with a whole society. ‘Partisanship . . . grew out of lives narrowly circumscribed by a community or neighborhood. For those who considered the next town or the next city block alien territory, such refined, deeply felt loyalties served both as a defense against outsiders and as a means of identification within.’52 As the nineteenth century progressed, so this story goes, massive socio-economic changes brought an onslaught of seemingly ‘alien’ presences into these island communities. Immigrants were the most obvious group of outsiders, but perhaps just as frightening was the emergence of powerful distant forces such as insurance companies, major manufacturers, railroads, and the national government itself. Significantly, these threats appear to have been conceived largely in spatial terms. According to Wiebe, Americans responded by reaffirming community self-determination and preserving old ways and values from ‘outside’ invasion.53 Given such a social context, it is not surprising that the jurisdictional rules of the period emphasized state territorial boundaries. Indeed, it is likely that the burdens of litigating in another state far exceeded simply the time and expense of travel, substantial as those burdens were. Just as important was the psychic burden of being forced to defend oneself in a foreign state, which may have felt little different from the idea of defending oneself in a foreign country. An 1874 Pennsylvania state court decision issued shortly before Pennoyer illustrates the extent of this perceived psychic burden.54 In the case, a resident of New York had contested jurisdiction in Pennsylvania. The court acknowledged that the Pennsylvania courthouse was only ‘a few hours’ travel by railroad from New York, but nevertheless ruled that the defendant could not be sued personally, in part because ‘nothing can be more unjust than to drag a man thousands of miles, perhaps from a distant state, and in effect compel him to appear’.55 The court disregarded the relatively slight literal burden in the actual case at hand, and instead focused on the hypothetical spectre of being ‘dragged’ to a ‘distant state’ located ‘thousands of miles’ away. Indeed, the decision seemed to equate other states with foreign countries, referring to a ‘defendant living in a remote state or foreign country . . . [who] becomes subject to the jurisdiction of this, to him, foreign tribunal’.56 These passages indicate that the 50 Robert H. Wiebe, The Search for Order: 1877–1920 (New York: Hill and Wang, 1967), xiii. 51 Ibid. 52 Ibid., 27. 53 Ibid., 52–8. 54 Coleman’s Appeal, 75 Pa 441 (1874). 55 Ibid., 457. 56 Ibid.

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Jurisdictional Pluralism 133 psychic significance of defending oneself in another state was at least as important as the actual difficulties of travel. Both the literal and psychic burdens associated with out-of-state litigation changed as a result of the urban industrial revolution of the nineteenth and early twentieth centuries, a revolution that profoundly altered American social space. Increasingly, economic and governmental activities were administered from afar by impersonal managers at centralized locations. In such a world, another state was likely to be viewed less as a foreign country and more as yet another distant power centre, just one of many ‘anonymous, bureaucratic, regulatory bodies in an increasingly complex society’.57 In addition, advances in transportation and communications helped to weaken territoriality as the central category in which Americans understood their space. ‘As long as daily lives were focused to a large extent on the local, a state boundary symbolized the edge of the world and everything outside that boundary was alien and foreign.’58 With increased mobility, however, Americans regularly crossed state boundaries by train, by car, and by plane, which inevitably diminished the sense that other places were alien. The rise of radio and television meant that events in other states could become a regular part of one’s daily consciousness. ‘Physical distance as a social barrier began to be bypassed through the shortening of communication “distance” .’59 These communication and transportation advances reinforced the functional interdependence that characterized the United States throughout the twentieth century. As a result, almost all Americans began to be regularly affected by people, institutions, and events located far away. In this altered social space, the call to defend a lawsuit in the courts of another state remained an imposition, but the burdens were no longer perceived in stark t erritorial terms. In other words, though many economic and practical burdens remained, the psychic burden was no longer as great. Given such changes, it is not surprising that courts considering questions of legal jurisdiction began to chafe against the strict territorialist vision that Pennoyer imposed. In particular, the invention of the motor car and the development of the modern corporation meant that far-away entities could inflict damage within a state without actually being present there at the time of a lawsuit. In response, a number of states enacted statutes based on a theory of ‘consent’ to jurisdiction, a theory that the Pennoyer court had recognized as valid. For example, a Massachusetts statute decreed that an out-of-state motorist using the state’s highways would be deemed to have consented to Massachusetts jurisdiction in actions arising from accidents on those highways. The United States Supreme Court ultimately upheld this rather strained notion of consent in 1927. Similarly, most states enacted statutes essentially requiring out-of-state corporations to agree to jurisdiction within the state as a condition for conducting business there. Moreover, even if the corporation did not explicitly agree, it was often viewed as having implicitly consented 57 Kogan (n. 32), 651 (citations omitted). 58 Ibid., 652. 59 Joshua Meyrowitz, No Sense of Place: The Impact of Electronic Media on Social Behavior (New York: Oxford University Press, 1985), 116.

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134 Paul Schiff Berman to state jurisdiction simply by transacting business in the state. Alternatively, courts sometimes ruled that corporations were physically ‘present’ in any state in which that corporation was ‘doing business’, making the corporations subject to jurisdiction regardless of their consent. While allowing more flexibility in the jurisdictional calculus, the concepts of ‘consent’ and ‘presence’ were analytically unsatisfying in large part because courts often treated it as irrelevant whether the corporations had in fact literally consented to jurisdiction, nor could it plausibly derermine where a corporation, which has no physical reality, is present. Thus, speaking of ‘consent’ to jurisdiction and ‘presence’ in a state were no more than legal fictions invented to cope with changing economic reality. In the 1945 case of International Shoe Co. v Washington,60 the Supreme Court rearranged the landscape of personal jurisdiction in the United States. International Shoe, a Delaware corporation with its principal place of business in Missouri, manufactured and sold shoes and other footwear. The corporation maintained no offices, factories, or stores in the state of Washington, but did employ travelling salespeople there. These salespeople took orders and sent them to St Louis, whereupon International Shoe shipped the merchandise directly from St Louis to the customers in Washington. The state of Washington initiated an administrative hearing to assess International Shoe for contributions to the state unemployment compensation fund, but International Shoe argued that Washington had no jurisdiction over it because International Shoe was not ‘present’ within the state. The Supreme Court rejected International Shoe’s arguments. Although the Court might simply have stated that the corporation’s contacts with Washington were sufficient to create corporate presence there, the Court chose instead to articulate an entirely new test for personal jurisdiction. This test replaced the strict territorial rules of Pennoyer with a more flexible due-process inquiry based on whether the defendant had sufficient contact with the relevant state ‘such that jurisdiction is consistent with traditional notions of fair play and substantial justice’. This ‘minimum contacts’ test would be satisfied as long as the ‘quality and nature of the activity’ of the defendant within the state was sufficient ‘in relation to the orderly administration of the laws that it was the purpose of the due process clause to protect’. Since the decision in International Shoe, the minimum contacts test has provided the framework for determining the outer limits of personal jurisdiction under the US Constitution. Nevertheless, although the test’s flexibility is its greatest strength, such flexibility has meant that the minimum contacts analysis does not provide a clearly defined rule, relying instead on a highly particularized, fact-specific inquiry. Accordingly, one can never be sure in advance how many and what sort of contacts will be enough for a state to exercise jurisdiction under the federal Constitution. The Supreme Court has variously looked to whether defendants have ‘purposely availed’ themselves of the state, whether it was ‘reasonably foreseeable’ that they could be sued there, whether the defendant ‘targeted’ the state, or whether the interests of the state in adjudicating a dispute outweighed the defendant’s concerns about increased cost, inconvenience, or potential 60 326 US 310 (1945).

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Jurisdictional Pluralism 135 bias. As transportation and inter-state commerce have continued to grow in the decades since 1945, the Supreme Court has many times been called upon to determine how far to expand the reach of personal jurisdiction. Similarly, US choice-of-law doctrine experienced a ‘revolution’ in the twentieth century, with many states moving away from a strict territorialist conception based on where a lawsuit ‘arises’. And not surprisingly road and rail travel and cross-border contracts helped usher in the change because it became increasingly difficult to justify why the territorial location of only one event in a complicated set of transactions should determine the law to be applied. For example, in the oft-discussed case of Alabama Great Southern Railroad v Carroll,61 an employee was injured when a train coupling failed. The vested rights theory held that the relevant law was of the state where the injury occurred.62 However, given that the negligence took place elsewhere, the choice of the place of accident seems arbitrary. Similarly, it may be difficult to determine when and where an injury takes place (e.g. in a toxic tort case), and again the state where the person happens to be when the first symptoms appear seems relatively unimportant.63 Yet, under the vested rights approach such a determination might be the only relevant factor in choice-of-law analysis. Thus, even if one agreed that territorialism should be the criterion for choice of law, it is not at all clear how best to choose the appropriate territorial nexus, and the mechanical vested rights rules can seem substanceless. Moreover, the focus on territoriality in choice-of-law, as with jurisdiction, ignores important non-territorial factors, such as community affiliation. For example, in a pure territorialist system, two parties who are domiciled in one state could avoid a local contract rule by crossing the border, entering into the contract, and returning, thereby taking advantage of the foreign law.64 This is not at all hypothetical in the modern world of off-shore regulatory havens, where corporations frequently attempt to avoid various forms of governmental control by changing their territorial location. A purely territorial approach, therefore, will have difficulty coping with a context in which transactions and transportation across borders are so frequent. Indeed, although vested rights analysis treats as transcendental truth the idea that the state has complete and unchallenged authority within its own sphere and that no state, therefore, may meddle in another state’s ‘local’ affairs, we live today in a far more fluid world, where a purely territorial choiceof-law rule is unlikely to be satisfying. For example, when two New Yorkers drive an automobile from New York to Canada and get into an accident involving no one else, it seems to make little sense to apply Canadian insurance rules to any resulting claims just because the accident territorially occurred in Canada.65 Instead, we need to acknowledge that people may have multiple community affiliations beyond simply their territorial location at a particular moment in time, and therefore it might be appropriate for non-local 61 11 So 803 (1892). 62 Restatement (First) of Conflicts of Law, §386. 63 Lea Brilmayer, Conflict of Laws (Boston: Little, Brown & Co., 1995), 20–2 (discussing such difficulties). 64 This scenario is discussed in Brainerd Currie, Selected Essays on the Conflict of Laws (Durham: Duke University Press, 1963), 88. 65 Babcock v Jackson, 191 NE 2d 279 (NY 1963).

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136 Paul Schiff Berman law to apply to their transactions, at least under some circumstances. Thus, new conflict-of-laws approaches were adopted, focusing on a comparison of governmental interests66 or attempting to determine which government had the most significant relationship67 to the dispute, rather than using an approach relying on strict territorial location. As we can see from even this brief overview, in both jurisdiction and choice of law a more flexible set of tests based on fairness and context has at least in part replaced rigid, though more predictable, tests based exclusively on territorial location. And while this is an oversimplified account of the shift in American jurisdictional and choice-of-law rules, for the purposes of this discussion it makes the essential point clearly enough: changes in political and social conceptions of space form at least part of the context for changes in jurisdictional understandings. Thus, although some might ask why the rise of the internet, social media, virtual worlds, augmented reality, cloud-based data, e-currency, and autonomous agents requires us to rethink our ideas about legal jurisdiction and choice of law, the reality is that jurisdictional rules are always evolving, and this evolution has always responded to changing social constructions of space, distance, and community. As a result, the relevant question is whether the sense of social space has shifted once again. Arguably, people around the world now share economic space to a greater degree than ever before, in large part because of the increase in online interaction. Modern electronic communications, record-keeping, and trading capacities have allowed the world financial markets to become so powerful that the actions of individual territorial governments often appear to be ineffectual by comparison. Essential services, such as computer programming, can easily be ‘shipped’ across nation state boundaries and can even be produced multinationally. The international production and distribution of merchandise means that communities around the country—and even around the world— increasingly purchase the same name-brand goods and shop at the same stores. Virtual worlds and social media can ignore territoriality altogether and instead are organized around shared interests. An individual’s data can be stored literally anywhere regardless of the location of that individual. Currencies such as bitcoin and other blockchain systems seem to defy individual territorial governmental efforts to localize them. Autonomous weapons allow people far removed from the battlefield to make targeted military strikes. All of these changes radically reshape the relationship of people to their geography. As Joshua Meyrowitz observed decades ago, electronic media create ‘a nearly total dissociation of physical place and social “place.” When we communicate through telephone, radio, television, or computer, where we are physically no longer determines where and who we are socially.’68 Meyrowitz pointed out that, historically, communication and travel were synonymous, and it was not until the invention of the telegraph that text messages could move more quickly than a messenger could carry them. Thus, ‘informational differences between different places began to erode’.69 Moreover, many of the 66 Currie (n. 64). 67 Restatement (Second) of Conflicts of Law. 68 Meyrowitz (n. 59), 115. 69 Ibid., 116 (describing the impact of telegraphic technology).

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Jurisdictional Pluralism 137 boundaries that define social settings by including and excluding participants—including walls, doors, barbed wire, and other physical and legal barriers—are potentially less significant in a world where ‘the once consonant relationship between access to information and access to places has been greatly weakened’.70 Given such changes, it is possible that the psychic burden of foreign jurisdiction is less significant today because of our increased contact with foreign places. On the other hand, we may feel the need to cling even more tenaciously to localism in the face of the encroaching global economic system, as suggested by both the 2016 presidential election in the United States and the referendum in the United Kingdom regarding disengaging from the European Union.71 Moreover, in either scenario the ‘we’ is problematic. After all, different social groups, and different individuals, have very different degrees of exposure to and control over global flows of information, capital, and human migration.72 Nevertheless, the important point is that if jurisdictional rules both reflect and construct social space, further investigation is needed in order to better comprehend the relationships among community affiliation, physical location, and personal identity in a world where the importance of territorial borders and of geographical distance is being challenged.

IV. Jurisdiction and Relative Authority In response to these various forces of deterritorialization, one might be tempted to discount altogether the continued power and relevance of territorially based nation states. That strikes me as a mistake. After all, nation states continue to wield tremendous power, both military and economic. Moreover, they still maintain a powerful hold on the popular psyche, and for many they define a particularly significant source of community affiliation. Yet, even if the nation state is surely still a relevant jurisdictional entity, a more pluralist lens changes the analytical framework. Instead of emphasizing states and assuming 70 Ibid., 117. 71 Giddens (n. 29), 65 (‘The development of globalised social relations probably serves to diminish some aspects of nationalist feeling linked to nation-states (or some states) but may be causally involved with the intensifying of more localised nationalist sentiments.’). 72 Doreen Massey refers to this as the ‘power geometry of time–space compression’. Doreen Massey, Space, Place, and Gender (Minneapolis: University of Minnesota Press, 1994), 149. She contrasts those who are ‘in charge’ of time–space compression—‘the jet-setters, the ones sending and receiving the faxes and the e-mail, holding the international conference calls . . . distributing the films, controlling the news, organizing the investments’—with those who do a lot of physical moving, but are not ‘in charge’ of the process in the same way. Ibid. These people include those such as undocumented migrant workers who cross borders illegally or those who lose their jobs to less expensive labour abroad, or those whose livelihood is affected by global currency fluctuations. Thus, social conceptions of space, distance, and community definition are, of course, themselves varied and contested.

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138 Paul Schiff Berman that the construction and power of those states is unproblematic and uncontested, the idea of jurisdictional pluralism asks us to turn the focus from states to the idea that there might be multiple potential authorities in any given situation. Moreover, all authority is inevitably only relative, not absolute, and all the more so given the increasing number of transnational and non-state claims to authority. In such a world, a burgeoning collection of authorities overlaps, interacts, negotiates, and accommodates. These authorities inhabit jurisdictional spheres that are often contested, and so the goal of most pluralist projects, at root level, is to describe and conceptualize the interactions. This idea of relative authority, however, immediately sets up a theoretical conundrum because at least some conceptions of authority depend as a definitional matter on authority being absolute, not relative. Indeed, some argue that a relative authority is not a true authority at all. For example, Joseph Raz, in The Authority of Law, argues that central to ‘the uniqueness of law’ is law’s claim to comprehensive authority and s upremacy.73 According to Raz, ‘Since all legal systems claim to be supreme with respect to their subjectcommunity, none can acknowledge any claim to supremacy over the same community which may be made by another legal system.’74 The problem is that even if Raz’s approach were supportable as an abstract philosophical matter (itself a debatable assumption), an absolutist conception of legal authority is often simply inadequate to fully describe or analyse the transnational world of tangled legal and quasi-legal obligations and influences we see around us. Not surprisingly, a more pluralist conception of jurisdictional authority challenges such a conception. Most recently, Nicole Roughan, in Authorities, directly addresses Raz’s argument that a legal system by its nature must claim supremacy over other legal systems. To Roughan, Raz’s argument suffers from both empirical and analytical difficulties. As an empirical matter, she argues that the supremacy claim runs counter to actual legal practice, at least in Europe, which features ‘many prima facie legal systems, including those of municipal states, that do not claim supremacy over all others, or even claim subjection to others’.75 Other pluralists agree. For example, Nico Krisch surveys what he calls ‘the pluralist structure of postnational law’, finding, in instance after instance, a more fluid framework that has no categorical separation among legal spheres, but that also does not fully merge them or even define ‘the degree of authority’ that the norms of these different spheres actually possess.76 Likewise, Keith Culver and Michael Giudice detail many areas even outside Europe where legal hierarchies are not stable, including federal and quasi-federal states, as well as states that maintain domains of overlap among concurrent authorities.77 And these do not even count the contested domains of religious, ethnic, tribal, or corporate spheres. 73 Joseph Raz, The Authority of Law, 2nd edn (Oxford University Press, 2011), 117–21. 74 Ibid., 119. 75 Nicole Roughan, Authorities: Conflicts, Cooperation and Transnational Legal Theory (Oxford University Press, 2013), 155. 76 Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press, 2010), 12. 77 Keith Culver and Michael Giudice, Legality’s Borders: An Essay in General Jurisprudence (Oxford University Press, 2010).

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Jurisdictional Pluralism 139 Turning to Raz’s more fundamental, analytical claim, Roughan argues, in contrast to Raz’s monist conception, for an ‘account of law that explains how different supremacy claims can be integrated and mutually recognized while upholding the authority of law’.78 Her idea of relative authority aims to provide such an account. She argues that a legal system need not recognize another system as superior; it only needs to ‘recognize the relativity of its own claim to the claim of others, and of their claims to its own’.79 Thus, instead of seeing supremacy as a necessary precondition to law, Roughan offers a model of relative authorities that must ‘cooperate, coordinate, or tolerate one another if they are to have legitimacy’.80 In this model, the claim to legitimate authority actually occurs through interdependence and interaction. The result is not that authority is reduced. Rather, the claim to authority is actually inextricably linked to its interdependence with other similarly relative authorities. The pluralist model of relative overlapping authorities, therefore, is not necessarily a claim that traditional state-based legal systems have diminished authority in the twentyfirst century (though that might be true in some circumstances). Accordingly, one does not need to believe that nation states have become irrelevant in order to embrace a more pluralist perspective on authority and jurisdiction. To the contrary, the real point is that the relevance of nation state authority is now bound up in the ability of these states to negotiate pluralism. Thus, when Krisch and others describe a ‘post-national’ order, it is not because they believe that we are done with nation states. But what we might be done with is the (perhaps always fictitious) idealized vision of the nation state as a single authority operating autonomously within bounded territory. ‘Post’ in this case, means ‘after’, but not in the sense of nation states no longer existing; instead we are ‘after’ the nation state only in the sense of being after a particular moment when nation states were conceptualized in an autonomous absolutist way. Indeed, sometimes a claim to relative authority may actually be stronger than a similar claim to absolute authority. For example, Krisch describes instances when lower courts within European countries have invoked the authority of the European Court of Human Rights to increase their own authority within the domestic judicial system.81 In such cases, by intertwining their authority with others they may actually increase their authority rather than reduce it. Likewise, actors within a nation-state government can leverage international law to advance a contested position within their own government. Or a private arrangement created by non-state actors can build authority by imbricating its regime with state entities. Conversely, nation states can sometimes piggy-back on the superior enforcement power of non-state entities in order to effectuate claims to authority. For example, state authorities seeking to block or investigate web-based content frequently ask intermediaries such as Facebook, Google, or others to carry out their edicts because those entities are better able to enforce state authority beyond the state’s territorial borders. In all of these cases, mastering the negotiation among relative authorities can 78 Roughan (n. 75), 157. 79 Ibid. 80 Ibid., 8. 81 Nico Krisch, ‘The Open Architecture of European Human Rights Law’, Modern Law Review 71 (2008): 18.

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140 Paul Schiff Berman actually increase power. Thus, the nation state may emerge just as powerful as before or even more so, but it will derive its authority not from its autonomy but from its relationships with other authorities. Those relationships will often be played out on the terrain of legal jurisdiction.

V. Jurisdiction and Alternative Norms As previously noted, we may be accustomed to thinking of jurisdictional assertions as the unique province of a sovereign entity. But jurisdiction is more appropriately understood as a site of contestation and engagement among multiple relative authorities. Indeed, the assertion of jurisdiction itself can open space for the articulation of norms that function as alternatives to, or even resistance to, sovereign power. For example, in seventeenth-century England, common law courts began to issue writs of prohibition in order to prevent the rival Court of High Commission from hearing certain cases.82 In response, some critics argued that the common law courts were overreaching and that the question of which court had proper jurisdiction to hear a case could only be resolved by the king because the authority of all judges derived from him.83 In Prohibitions del Roy, Lord Coke describes himself as having replied to such characterizations of the king’s authority: [T]rue it was, that God had endowed his Majesty with excellent Science, and great Endowments of Nature; but his Majesty was not learned in the Laws of his Realm of England . . . With which the King was greatly offended, and said, that then he should be under the Law, which was Treason to affirm, as he said; to which I said, that Bracton saith, Quod Rex non debet esse sub homine, sed sub Deo et Lege [that the King should not be under man, but under God and the Law].84

Thus, Coke refused to place the king beyond or above the domain of law. By challenging the king and affirming the jurisdiction of the common law courts, Coke asserted the primacy of law even over sovereign power. In doing so, however, he also stripped the courts of the very ‘institutional protection . . . that ordinarily stands

82 Catherine Drinker Bowen, The Lion and the Throne: The Life and Times of Sir Edward Coke (Boston: Little, Brown & Co., 1957), 295 (explaining how Sir Edward Coke attacked the Ecclesiastical High Commission through writs of prohibition); Edward Coke, Reports of Sir Edward Coke, 7 vols., 4th edn (1738 [1655]), XII, 42 (discussing the use of writs in Nicholas Fuller’s case). 83 Coke (n. 82), 63 (describing the debate as to who had authority to decide jurisdiction in Prohibitions del Roy, 77 Eng Rep 1342 (KB 1607)); Bowen (n. 82), 303–4 (discussing the debate over the king’s ‘absolute power and authority’ to decide legal disputes). 84 Coke (n. 82), 65.

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Jurisdictional Pluralism 141 behind’ courts and enforces their orders.85 After all, who is to enforce legal jurisdiction when the king stands in opposition? This story makes clear both that courts can exercise power separate from (and perhaps contrary to) the governing power of the state and also that the exercise of such power is risky and always contingent on broader acceptance by communities (and coercive authorities) over time. Nevertheless, despite the risk, the rhetorical assertion of jurisdiction itself can have an important effect.86 For example, Coke’s memorialization of this jurisdictional assertion in his treatise was undoubtedly part of the Enlightenment movement to limit the power of kings and assert a higher rule of law. Thus, one can see a direct line from Coke to Thomas Paine, who declared that, in the new United States of America, ‘law is King’.87 It is, of course, a commonplace to say that courts lack their own enforcement power, making them dependent on the willingness of states and individuals to follow judicial orders. This observation is often used as an argument for the irrelevance of international law itself: because it is not state law, so the argument goes, it is subject to the realpolitik demands of pure power and is perhaps not really law at all. Similarly, we might think the claims to jurisdictional authority by non-state communities are not really law because the power of these non-state communities might depend on the willingness of states to carve out zones of jurisdictional autonomy for such communities. But it is important to recognize that neither of these examples is fundamentally different from how law always operates, even when articulated by nation-state authorities. For example, courts can only exercise authority to the extent that someone with coercive power chooses to carry out the legal judgments issued. Thus, the essence of law is that it makes aspirational judgments about the future, the power of which depends on whether the judgments accurately reflect evolving norms of the communities that must choose to obey them. If this is so, then we might view extraterritorial law-making as substantially similar to law-making within territorial bounds. For example, if a French court issues a judgment against a US corporation, it might be true that the court’s command is only literally enforceable if an American authority will agree to enforce it, but the same court’s decision against the corporation’s French subsidiary is similarly dependent on the enforcement power of a sovereign. After all, if the executive branch of the French government were to refuse to enforce the order against the subsidiary, that order would have no more force than the order against the American parent. Moreover, the French court might never need literal enforcement from a US court. 85 Robert Cover, ‘The Folktales of Justice: Tales of Jurisdiction’, in Martha Minow et al. (eds.), Narrative, Violence, and the Law: The Essays of Robert Cover (Ann Arbor: University of Michigan Press, 1992), 173, 186. 86 There is some evidence that Coke’s version of his actions is not accurate and that he actually capitulated to the king’s authority. Bowen (n. 82), 305–6 (observing that some historians have rejected Coke’s account, relying on other seventeenth-century evidence, which indicates that Coke actually threw himself on the mercy of the king). Even if this is so, however, the rhetorical assertion of jurisdiction in his treatise might still have persuasive value over time. 87 Thomas Paine, ‘Common Sense’, in Philip S. Foner (ed.), The Complete Writings of Thomas Paine (New York: Citadel Press, 1945 [1776]), 1, 29.

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142 Paul Schiff Berman If the US corporation wishes to continue commercial activity in France, the c orporation may choose to comply ‘voluntarily’ anyway. So, if the assertion of jurisdiction is always an assertion of community dominion, then all judicial decisions rely on both that particular community’s acquiescence and potentially the willingness of other communities to recognize and enforce the jurisdictional assertion. In this vision, we come to understand that all jurisdictional assertions depend on the rhetorical force of their articulation of norms to entice allegiance.

VI. A Cosmopolitan Pluralist Vision of Jurisdiction As we have seen, the story of jurisdiction is a story of social space, community d efinition, deterritorialization, and relative authority. But the very ideas of space, community, territory, and authority are themselves narrative constructions that are always contested. Thus, the problem with assuming that territorially based nation-state identities are the only relevant matrix for understanding community affiliation or jurisdictional authority is that such a conception ‘serves to foreclose a richer understanding of location and identity that would account for the relationships of subjects to multiple collectivities’.88 Rather, we must recognize that the ability of people to confound the established spatial orders, either through physical movement or through their own conceptual and political acts of reimagination or jurisdiction-making, means that space, community a ffiliation, and jurisdictional authority can never be ‘given’ and that the process of their socio-political construction must always be considered. A jurisdictional system whose objects are no longer conceived as ‘automatically and naturally anchored in space’ can therefore ‘pay particular attention to the way spaces and communities are made, imagined, contested, and enforced’.89 In response to these fluid realities, we should seek a more cosmopolitan pluralist conception of jurisdiction that would aim to capture a jurisdictional middle ground between strict territorialism on the one hand and expansive universalism on the other. As previously discussed, a pure territorialist approach to jurisdiction fails to account for the wide variety of community affiliations and social interactions that defy territorial boundaries. A more universalist perspective, by contrast, which seeks to imagine people as world citizens first and foremost, might seem to be a useful alternative. After all, universalism recognizes (and indeed celebrates) non-territorial and non-national identification. This alternative, though attractive in its idealism, strikes me as misguided for several reasons. First, it asks that we see ourselves solely as citizens of the world and therefore dissolves the multirootedness of community affiliation into one global community. Second, it fails to capture the extreme emotional ties people still feel to distinct transnational or local 88 Gupta (n. 27), 196.

89 Gupta and Ferguson (n. 2), 47.

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Jurisdictional Pluralism 143 communities.90 Thus, universalism tends to ignore the very attachments people hold most deeply. Third, the aspiration that we become solely citizens of the world is at least partly based on an internationalization of John Rawls’s theory of justice and is therefore subject to the same criticism Rawls has long faced: that his theory assumes a Self detached from the social and cultural context that makes such a Self possible.91 Fourth, and perhaps most important, a universalist conception of jurisdiction tends to presuppose a world citizenry devoid of both particularist ties and normative discussion about the relative importance of such ties. Thus, universalism seeks to foreclose debate and contestation about community affiliation, jurisdiction, and authority just as surely as territorialism does. Yet, it is undoubtedly true that many of the problems facing the world increasingly require coordinated solutions and more interaction among legal and political systems, not less. Such problems include: issues of how we will effectively maintain life on this planet (climate change, biodiversity, ecosystem losses, and water deficits); issues of how human beings will sustain themselves on it (poverty, conflict prevention, and global infectious diseases); and issues of how we will develop global cooperative rules for living together given that much human activity crosses territorial borders (nuclear proliferation, toxic waste disposal, data protection, trade rules, finance and tax rules, and so on). These sorts of problems cannot plausibly be addressed solely within one legal system. Thus, the legal challenge of our time: building mechanisms for engagement among legal, political, or cultural systems that will recognize at least a limited set of shared values and promote mutual respect, dialogue, and cooperation, without requiring all systems to be homogenized into one universalistic legal order. We must build what David Held has called ‘the ethical and political space which sets out the terms of reference for the recognition of people’s equal moral worth, their active agency and what is required for their autonomy and development’.92 But at the same time, we must recognize that the meaning of principles such as equal concern and regard, human dignity, and so on cannot be specified once and for all separate from the diversity of traditions, beliefs, histories, and cultures that make up human societies. In the end, what we need are institutions, procedures, and practices that allow for dialogue and cooperation under conditions of diversity. I believe legal pluralists should take up this challenge and help develop principles that might underlie the kinds of institutions, procedures, and practices that might be needed to perform this delicate balancing act. Indeed, scholars of legal pluralism are well positioned to understand the many ways in which legal systems and governmental institutions

90 Thomas M. Franck, ‘Clan and Superclan: Loyalty, Identity and Community in Law and Practice’, American Journal of International Law 90 (1996): 359, 374 (‘The powerful pull of loyalty exerted by the imagined nation demonstrates that, even in the age of science, a loyalty system based on romantic myths of shared history and kinship has a capacity to endure . . . ’). 91 Chander (n. 26), 1047. 92 David Held, ‘Cosmopolitanism in a Multipolar World’, Rosi Braidotti, Patrick Hanafin, and Bolette Blaagaard (eds.), After Cosmopolitanism (New York: Routledge, 2013).

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144 Paul Schiff Berman respond to the realities of diversity and the existence of multiple norm-generating communities operating simultaneously in the same social space. A more cosmopolitan conception of jurisdiction makes no attempt to deny the multirootedness of individuals within a variety of communities, both territorial and non- territorial. Indeed, the basic tenet of cosmopolitanism, as I define it, is the acknowledgement of multiple communities, rather than the erasure of all communities except the most encompassing. Thus, although a cosmopolitan conception of jurisdiction might harness the potential benefit of thinking of jurisdiction in universalist terms in order to address significant cross-border issues, it does not require a universalist belief in a single world community. In addition, a truly pluralist conception of jurisdiction recognizes that law does not reside solely in the coercive commands of a sovereign power. Rather, law is constantly constructed through the contest of various norm-generating communities.93 As Robert Cover argued nearly four decades ago, ‘all collective behavior entailing systematic understandings of our commitments to future worlds’ can lay equal claim to the word ‘law’.94 Thus, although ‘official’ norms articulated by sovereign entities obviously count as ‘law’, a pluralist framework acknowledges that such official assertions of jurisdiction are only one of the many ways in which normative commitments arise. Accordingly, a more comprehensive conception of jurisdiction must attend to the jurisdictional assertions of non-sovereign communities as well.95 Such jurisdictional assertions are significant because, even though they lack coercive power, they open a space for the articulation of legal norms that are often subsequently incorporated into official legal regimes. Indeed, once we recognize that the state does not hold a monopoly on the articulation and exercise of legal norms, then we can see law as a terrain of engagement, where various communities debate different visions of alternative futures. And the idea of jurisdiction necessarily becomes a locus for this debate because it is in the assertion of jurisdiction itself that these norm-generating communities seize the language of law and articulate visions of future worlds. If jurisdiction is, literally, the ability to speak as a community, then we can begin to develop a ‘natural law of jurisdiction’,96 where communities claim the authority to use the language of the law based on a right or entitlement that precedes the particular sovereignties of the present moment; the assertion of jurisdiction is therefore the act that sets these normative views in conflict. Accordingly, a cosmopolitan pluralist conception of jurisdiction would provide all the multiple attachments we might call ‘community’ with an opportunity to establish 93 Robert M. Cover, ‘The Supreme Court, 1982 Term—Foreword: Nomos and Narrative’, Harvard Law Review 97 (1983): 4, 43 (‘The position that only the state creates law . . . confuses the status of interpretation with the status of political domination.’); Cover (n. 85), 176 (arguing that law functions as a ‘bridge in normative space’, a way of connecting the ‘world-that-is’ with various imaginings of ‘worlds-that-might-be’). 94 Cover (n. 85), 176 (emphasis added). 95 Cover argued that such a capacious understanding of ‘law’ would ‘deny to the nation state any special status for the collective behavior of its officials or for their systematic understandings of some special set of “governing” norms’. Ibid. According to Cover, such ‘official’ norms may count as law, but they must share that title with ‘thousands of other social understandings’. Ibid. 96 Cover (n. 93), 58.

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Jurisdictional Pluralism 145 both their claim to community status and their particular normative commitments on the legal stage of jurisdiction. Finally, in a world of deterritorialized data, the role of intermediaries as law-makers and law-enforcers has radically increased. When Facebook enforces Terms of Service agreements, or Twitter is asked (or required) to police hate speech, or Google implements a ruling of the European Court of Justice, we can call these acts of intermediaries law or not, but a pluralist would argue that it does not matter how you define it; the fact is that these acts affect the behaviour of real people in the real world. Indeed, as previously discussed, the actions of intermediaries can have more impact than the sometimes-empty commands of a sovereign. A pluralist perspective has the advantage of not getting caught up in definitions of law, but instead recognizing that the quasi-law created, imposed, and/or applied by non-governmental entities should remain within our legal analytical purview, whether we call them law or not.

VII. Jurisdiction, Jurispersuasion, and Contestation A cosmopolitan pluralist conception of jurisdiction also allows us to make sense of inevitable jurisdictional contestation, or what we might call jurispersuasion. Consider the bold (or utopian) impulse to assert jurisdiction: Imagine yourself a tribunal. Pretend you have an audience—a community of some sort that will recognize you as a tribunal. Now, go all the way. What grandeur of transformation of the normative universe would you perform? Will you simply issue a general writ of peace? A warrant for justice notwithstanding facts and law? Will you order everyone to be good? Perhaps, perhaps you will judge the dead? Or even bring God as a defendant? The possibilities are endless and the question arises whether or why one should or should not try something outlandish, impossible, or just plain daring.97

The idea of imagining oneself a tribunal sounds fanciful. After all, we might think, p eople cannot simply construct their own legal jurisdiction. But that is true only if we accept a reified conception of jurisdiction based on state sovereigns wielding absolute authority within an unchanging set of legal boundaries. Such a conception, however, is normatively unjustifiable as a way of capturing actual community identifications and social understandings of space, and of course it also fails to describe adequately the increasingly deterritorialized and non-state nature of actual legal practice. Moreover, by imagining the creation of jurisdiction we can see the transformative ways in which alternative assertions of legal jurisdiction can be linked to the articulation and development of alternative norms and community definitions. 97 Ibid., 187.

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146 Paul Schiff Berman Of course, despite the deterritorialist trends of the contemporary world, it is worth remembering that jurisdictional contestation is not at all new. Even the most powerful empires in world history only ever governed partially, and there were many spaces left— and often deliberately left—for alternative and competing legal and quasi-legal systems.98 Overseas trading companies established quasi-legal jurisdictions, and settlers established feudal enclaves in the new world. Jurisdictional conflicts occurred not just between religious communities and imperial orders, but also among religious jurisdictions of Christian, Jewish, and Islamic communities within a single empire. Historians show us jurisdictional clashes concerning fugitive slaves in the Caribbean, slaves and convicts in the British Empire, and indigenous peoples in New Zealand, among many others. All of these liminal spaces formed the locus for jurisdictional battles and strategic action. Indeed, it is significant that jurisdictional uncertainty often creates multiple ports for entry. An actor unheard in one forum can try another. Thus, jurisdictional pluralism is not just a challenge to a vision of clear borders among absolute authorities; it also literally opens up space to discover the agency of less powerful actors, who sometimes use that pluralism to jockey for position. Looking more closely at the process of jurisdiction-creation, we can imagine a community coming together and purporting to adjudicate a dispute.99 Obviously, its judgment is not self-executing; some entity with police power must enforce it. Thus, the question becomes not whether a community can assert jurisdiction, but whether other communities are willing to give deference to the judgment rendered and enforce it as if it were their own. This is the process of judgment recognition familiar to those who study conflict of laws (or private international law). A tribunal asserts jurisdiction over a dispute, and then other jurisdictions must decide whether to confer legitimacy on that tribunal by recognizing and enforcing its judgment. Thus, even at the moment that a community daringly invents its own legal jurisdiction, it is immediately forced to acknowledge that its invention is limited by the willingness of others to accept the judgment as normatively legitimate.100

98 Lauren Benton and Richard J. Ross (eds.), Legal Pluralism and Empires, 1500–1850 (New York University Press, 2013) (providing multiple examples of this sort of jurisdictional pluralism). 99 Robert Cover offers the example of a group of Jews in a small city in Galilee in 1538. This group attempted to constitute a Jewish court even though its authority to do so was dubious. Significantly, the leaders of the group apparently determined that they could not assert jurisdiction on their own. Thus, they proclaimed their act in a message sent to Jerusalem seeking recognition. Cover (n. 85), 190–2. Cover suggests that such approval was necessary not only as a matter of religious doctrine, but also because, without assent from Jerusalem, it was hardly likely that the rest of Judaism would take the experiment seriously. Ibid., 193. 100 As Cover points out, though law is a bridge to an alternative set of norms, the bridge begins not in ‘alternity’ but in reality. Therefore, there are real constraints on the engineering of that bridge. Ibid., 187 (‘If law . . . is a bridge from reality to a new world there must be some constraints on its engineering. Judges must dare, but what happens when they lose that reality?’).

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Jurisdictional Pluralism 147 Non-state communities also assert law-making power through more informal etworks and organizations and through the slow accretion of social custom itself. Prior n to the rise of the state system, much law-making took place in autonomous institutions and groups, such as cities and guilds, and large geographic areas were left largely unregulated.101 Even in modern nation states, we see a whole range of non-state lawmaking in tribal or ethnic enclaves,102 religious organizations,103 corporate by-laws, social customs,104 private regulatory bodies, and a wide variety of groups, associations, and non-state institutions.105 For example, in England bodies such as the Church, the stock exchange, the legal profession, the insurance market, and even the Jockey Club opted for forms of self-regulation that included machinery for arbitrating disputes among their own members.106 Even more informally, day-to-day human encounters such as interacting with strangers on a public street, waiting in lines, and communicating with subordinates or superiors are all governed by what Michael Reisman has called

101 Eugen Ehrlich, Fundamental Principles of the Sociology of Law, trans. Walter L. Moll (London: Routledge, 1936), 14–38 (analysing and describing the differences between legal and non-legal norms). Otto Gierke and George Heiman (ed. and trans.), Associations and Law: The Classical and Early Christian Stages (University of Toronto Press, 1977) (setting forth a legal philosophy based on the concept of association as a fundamental human organizing principle); Otto Gierke, Natural Law and the Theory of Society: 1500 to 1800, trans. Ernest Barker (Cambridge University Press, 1934 [1913]) (presenting a theory of the evolution of the state and non-state groups according to the principle of natural law). 102 Walter Otto Weyrauch and Maureen Anne Bell, ‘Autonomous Lawmaking: The Case of the “Gypsies” ’, Yale Law Journal 103 (1993): 323 (delineating the subtle interactions between the legal system of the Romani people and the norms of their host countries). 103 Carol Weisbrod, The Boundaries of Utopia (New York: Pantheon, 1980) (examining the contractual underpinnings of four nineteenth-century American religious utopian communities: the Shakers, the Harmony Society, Oneida, and Zoar). As Marc Galanter has observed, the field of Church and State is the ‘locus classicus of thinking about the multiplicity of normative orders’. Marc Galanter, ‘Justice in Many Rooms: Courts, Private Ordering, and Indigenous Law’, Journal of Legal Pluralism and Unofficial Law 19 (1981): 28, 28; Carol Weisbrod, ‘Family, Church and State: An Essay on Constitutionalism and Religious Authority’, Journal of Family Law 26 (1988): 741 (analysing Church–State relations in the United States from a pluralist perspective). 104 Lon L. Fuller, Anatomy of the Law (New York: Praeger, 1977), 43–9 (describing ‘implicit law’, which includes everything from rules governing a camping trip among friends to the customs of merchants). 105 Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (Cambridsge, MA: Harvard University Press, 1991) (drawing on an empirical study of relations among cattle ranchers to develop a theory of nonlegal norms as a source of social control); Stewart Macaulay, ‘Images of Law in Everyday Life: The Lessons of School, Entertainment, and Spectator Sports’, Law and Society Review 21 (1987): 185 (discussing the concept of legality as reflected in popular culture); Stewart Macaulay, ‘Non-Contractual Relations in Business: A Preliminary Study’, American Sociological Review 28 (1963): 55 (presenting empirical data on nonlegal dispute settlement in the manufacturing industry); Stewart Macaulay, ‘Popular Legal Culture: An Introduction’, Yale Law Journal 98 (1989): 1545 (surveying the sources of popular perceptions of the law). 106 F. W. Maitland, ‘Trust and Corporation’, in H. D. Hazeltine et al. (eds.), Maitland: Selected Essays (Cambridge University Press, 1936 [1905]), 141, 189–95 (describing the sophisticated non-legal means of enforcing order among members of these institutions).

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148 Paul Schiff Berman ‘microlegal systems’.107 Thus, law is found not only in the formal decisions of judges, legislators, and administrators, but also: any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most lawmaking is too ephemeral to be even noticed. But when conflict within the group ensues, and it is forced to decide between conflicting claims, law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law.108

In some circumstances, official legal actors may delegate law-making authority to nonstate entities or recognize the efficacy of non-state norms. For example, commercial litigation, particularly in the international arena, often takes place before non-state arbitral panels.109 Likewise, non-governmental standard-setting bodies, from Underwriters Laboratories (which tests electrical and other equipment) to the Motion Picture Association of America (which rates the content of films) to the Internet Corporation for Assigned Names and Numbers (which administers the Internet domain name system), construct detailed normative systems with the effect of law. Regulation of much financial market activity is left to private authorities such as stock markets or trade associations such as the National Association of Securities Dealers. And law-making authority over sports events is generally left to non-state entities (such as referees or sports governing bodies) whose decisions are not usually reviewable except within the system established by the sports authority or league.110 Significantly, the jurisdiction of all of these non-state actors may be formally limited to their particular bounded communities, but the norms they articulate often seep into the decisions of state legal institutions. The most obvious example of state law’s recognition of non-state law-making is in the common law’s ongoing incorporation of social custom and practice. As scholars have recognized, ‘[d]ecisionmakers work under a continuing pressure to incorporate customary rules into their decisions’.111 Sometimes such incorporation is explicit, as when a statute is interpreted (or even supplanted) by 107 Michael Reisman, ‘Lining Up: The Microlegal System of Queues’, University of Cincinnati Law Review 54 (1985): 417; Michael Reisman, ‘Looking, Staring and Glaring: Microlegal Systems and Public Order’, Denver Journal of International Law and Policy 12 (1983): 165; Michael Reisman, ‘Rapping and Talking to the Boss: The Microlegal System of Two People Talking’, in Conflict and Integration: Comparative Law in the World Today (Tokyo: Chuo University Press, 1988), 61. 108 Weyrauch and Bell (n. 102), 328 (quoting Thomas A. Cowan and Donald A. Strickland, ‘The Legal Structure of a Confined Microsociety’, Internal Working Paper No. 34 (University of California, 1965), i). 109 Yves Dezalay and Bryant G. Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (University of Chicago Press, 1996). 110 Ga High Sch Ass’n v Waddell, 285 SE 2d 7, 9 (Ga 1981) (holding that a dispute over a referee’s decision affecting the outcome of a high school football game was nonjusticiable). But see PGA Tour, Inc. v Martin, 532 US 661, 690 (2001) (ruling that a golf association had violated the Americans with Disabilities Act by preventing a partially disabled golfer from using a golf cart to compete). 111 Weyrauch and Bell (n. 102), 330.

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Jurisdictional Pluralism 149 reference to industry custom112 or when a law of sales that would accord with merchant reality was adopted in the Uniform Commercial Code,113 or when the rules promulgated by a small community of trade finance bankers were ultimately appropriated by the World Trade Organization into their official legal instruments.114 Even when the impact of non-state norms is unacknowledged, however, state-sponsored law may only be deemed legitimate to the extent that its official pronouncements reflect the ‘common understandings of private laws and customs’.115 Indeed, as the prior discussion of changes in US jurisdictional law illustrates, the invention of legal fictions such as implied consent and corporate presence often indicates that official norms are being adjusted to reflect more closely the dictates of non-state norms and practices.116 Non-state assertions of jurisdiction may even sometimes take the guise of more formal legal proceedings. For example, in 1933, as five communists accused by Hitler of setting fire to the Reichstag building in Berlin were tried in Germany, Arthur Garfield Hays— counsel for the American Civil Liberties Union—helped to organize a ‘Counter Trial’ in London.117 This ‘trial’ used the formalities of legal process to enact a ‘publicly deliberative drama’.118 According to Hays, the Counter Trial helped ‘to engage “public opinion” and to set a ‘valuable precedent’ by which the actions of the German tribunal could be measured’.119 Even the German court ultimately felt the need to refute the findings of the London proceedings in order to combat the international impact of the Counter Trial.120 According to Arthur Koestler, the Counter Trial ‘was a unique event in criminal history’ because it caused the German court to ‘concentrate its efforts on refuting accusations by a third, extraneous party’.121

112 Fuller (n. 104), 57–9 (arguing that the act of interpretation permits courts to adjust official legal norms to match custom or usage); James Willard Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836–1915 (Cambridge, MA: Harvard University Press, 1964), 289–94 (describing the ways in which local norms in the Wisconsin lumber industry played a significant role in the way contract law was applied). 113 Zipporah Batshaw Wiseman, ‘The Limits of Vision: Karl Llewellyn and the Merchant Rules’, Harvard Law Review 100 (1987): 465, 503–19 (describing Karl Llewellyn’s initial drafts of what later became Art. 2 of the Uniform Commercial Code). 114 Janet Koven Levit, ‘A Bottom-Up Approach to International Lawmaking: The Tale of Three Trade Finance Instruments’, Yale Journal of International Law 30 (2005): 125, 165 (describing the incorporation of an informal ‘Gentleman’s Agreement’ on export credits as a safe harbour in the WTO’s Agreement on Subsidies and Countervailing Measures). 115 Weyrauch and Bell (n. 102), 329. 116 Maksymilian Del Mar and William Twining (eds.), Legal Fictions in Theory and Practice (Cham, Switzerland: Springer, 2015). 117 Louis Anthes, ‘Publicly Deliberative Drama: The 1934 Mock Trial of Adolph Hitler for “Crimes Against Civilization” ’, American Journal Legal History 42 (1998): 391, 398–9 (describing the trial). 118 Ibid., 393. Anthes defines this term as ‘the improvising of legal formality to foster debate’. 119 Ibid., 399. 120 Ibid. (noting that in doing so, the German court was apparently seeking ‘to minimize the loss of international goodwill’). 121 Arthur Koestler, The Invisible Writing: Being the Second Volume of Arrow in the Blue, an Autobiography (New York: Macmillan, 1954), 200.

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150 Paul Schiff Berman The following year, Hays and others organized a trial styled the ‘Case of Civilization against Hitler’ as part of a rally at Madison Square Garden in New York City.122 Twenty thousand people in attendance and thousands more listening live over the radio heard an indictment, testimony from nearly two dozen witnesses, a summation by a former New York Court of Appeals judge, and a judgment of the court pronounced by a local minister. Newspaper accounts the following day reported that Hitler had been found guilty of high ‘crime against civilization’123 and that the trial ‘rendered solemn judgment that the Nazi government stood convicted before the world’.124 Thus, non-state assertions of jurisdiction may mobilize popular opinion in resistance to state-sanctioned norms and may also create a context for telling a counternarrative about historical events. The ‘Women’s International War Crimes Tribunal 2000’ represents a more recent, though similar, use of legal forms to construct an alternative history. This self-styled ‘peoples’ tribunal’—convened in Tokyo in December 2000—heard evidence concerning the criminal liability for crimes against humanity of both Japan and its high-ranking military and political officials for rape and sexual slavery arising out of Japanese military activity in the Asia-Pacific region during the 1930s and 1940s.125 Frustrated by the d enials of Japanese government officials and by failure in lawsuits before state-sanctioned courts,126 survivors of these alleged offences turned to international non-governmental organizations.127 After initial conferences were held in Tokyo and Seoul, an International Organizing Committee for the tribunal was formed. Indictments were presented by prosecution teams from ten countries, including North and South Korea, China, Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor, and the Netherlands. Indeed, ‘[t]he shared experience of Japanese colonization brought North and South Korean prosecutors together with a joint indictment—an expression of common purpose that continues to be unthinkable at the governmental level’.128 The prosecution presented evidence for three days. More than seventy-five survivors were present. Many of those present gave evidence, and other survivors recorded video interviews or signed affidavits that were entered into evidence by the prosecution. The panel of judges ‘represented a broad geographical distribution, expertise in diverse and relevant areas of domestic and international law, a mix of practitioner, judicial, and academic expertise, and . . . an equitable gender balance’.129

122 Anthes (n. 117), 391–4 (describing the trial in terms of both culture and politics). 123 ‘Nazis “Convicted” of World “Crime” by 20,000 in Rally’, New York Times, 8 March 1934, 1. 124 Ibid. 125 Christine M. Chinkin, ‘Women’s International Tribunal on Japanese Military Sexual Slavery’, American Journal of International Law 95 (2001): 335, 335. 126 ‘Japan Overturns Sex Slave Ruling’, BBC News, 29 March 2001, https://perma.cc/3394-ANJV (discussing the decision by Hiroshima’s High Court to overturn the only successful claim for compensation in Japanese courts). 127 Chinkin (n. 125), 336 (noting that the primary organization was a group called Violence Against Women in War Network, Japan, ‘which was founded in 1998 after the International Conference on Violence Against Women in War and Armed Conflict Situations was held in Tokyo in 1997’). 128 Ibid. 129 Ibid., 338.

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Jurisdictional Pluralism 151 After the closing of evidence and argument, the judges began deliberating, assisted by a team of legal advisers. They prepared a preliminary judgment, which was presented to an audience of more than 1,000 people. The judgment found Emperor Hirohito ‘guilty of the charges on the basis of his command responsibility’.130 In addition, the panel ruled that Japan was ‘responsible under international law applicable at the time of the events for violation of its treaty obligations and principles of customary international law relating to slavery, trafficking, forced labor, and rape, amounting to crimes against humanity’.131 The judges subsequently proposed a range of reparations and made other recommendations. Other non-state tribunals have similarly sought to inculcate the norms embodied in international humanitarian and human rights law. For example, the 1967 ‘International War Crimes Tribunal’ convened by Bertrand Russell and Jean-Paul Sartre purported to adjudicate whether the United States had violated international law in prosecuting the Vietnam War.132 Likewise, ‘private citizens of high moral authority’ from several countries established a ‘Permanent People’s Tribunal’ in Italy in the 1970s.133 This tribunal existed for a number of years and examined a series of alleged violations of international law to which there had been inadequate official response, including the Soviet military intervention in Afghanistan, that of Indonesia in East Timor, and the alleged genocide of Armenians by the Turks in the period 1915–19.134 In 1984, another People’s Tribunal was convened to gather evidence concerning the Armenian genocide.135 A film, The Trials of Henry Kissinger (based on a 2001 book of the same name by Christopher Hitchens), assembled historians, politicians, and others to assess the former US Secretary of State’s criminal responsibility for US military activities in Vietnam and Cambodia.136 In some ways, of course, such assertions of jurisdiction are purely symbolic acts. Yet, by claiming authority to articulate norms, these tribunals insisted that ‘ “law is an instrument of civil society” that does not belong to governments, whether acting alone or in institutional arenas’.137 Moreover, the reports issued by such tribunals provide a valuable alternative source of evidence and jurisprudence pertaining to contested applications of

130 Ibid. 131 Ibid. 132 Cover (n. 85), 198–201 (describing this non-state tribunal as arising from a lack of state opposition to the war). For the report of this tribunal, see John Duffett (ed.), Against the Crime of Silence: Proceedings of the Russell International War Crimes Tribunal (New York: Bertrand Russell Peace Foundation, 1968). 133 Richard Falk, ‘The Rights of Peoples (in Particular Indigenous Peoples)’, in James Crawford (ed.), The Rights of Peoples (Oxford: Clarendon Press, 1988), 17, 28. 134 Ibid., 28–9. 135 The Permanent Peoples’ Tribunal, A Crime of Silence: The Armenian Genocide (London: Zed, 1985). 136 Ronnie Scheib, ‘Film Review: The Trials of Henry Kissinger’, Variety, 15–21 July 2002, 27 (‘Is Henry Kissinger, America’s revered elder statesman and Nobel Peace Prize winner, a war criminal? That’s the question posed by this startling BBC docu[mentary] that starts with the accusations leveled by Christopher Hitchens in his recent book.’). 137 Chinkin (n. 125), 339 (quoting Falk (n. 133), 29).

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152 Paul Schiff Berman international law. And even these ‘quasi-legal’ fora can constitute a form of public acknowledgement to the survivors that serious crimes were committed against them.138 Thus, calling the tribunals ‘extra-legal’ or ‘symbolic’ does nothing to lessen their claims to produce norms or to affect people. After all, even state entities pursue trials that are largely symbolic, such as the French trial against ageing war criminal Klaus Barbie.139 In the past several decades, we have also seen the rise of truth commissions, the primary aim of which is story-telling in order to create a record of past abuses.140 Lawsuits in the United States seeking reparations for slavery141 serve as another example of the way in which juridical mechanisms can be used to affect collective memory. Finally, one might see the creation of the International Criminal Court in 2002 as evidence that the norms these non-state tribunals sought to inculcate have taken hold. Of course, some communities may embrace norms that many would find undesirable. For example, white supremacist militia groups might well attempt to assert jurisdiction over their perceived enemies. Other communities might seek to impose norms that conflict with evolving international human rights standards. Hierarchy and oppression abound within many communities, and merely uttering the talismanic word ‘community’ does not transform human behaviour into sweetness and light. Thus, any theory of jurisdiction that requires deference to these sorts of alternative normative visions would likely prove unacceptable. Yet, it is important to recognize that, in order for the legal norms of a non-state community to be enforced, such norms must be adopted by those with coercive power, and abhorrent assertions of community dominion are unlikely to achieve widespread acceptance. Thus, the enforcement arena provides a powerful incentive to communities not to move too far away from a developing international consensus. In a sense, this is how even state-sanctioned courts operate because they lack their own enforcement power. Courts always issue decisions at the sufferance of their ‘sovereign’, and if they 138 Of course, such tribunals’ impact undoubtedly depends in part on the power and resources of the entities or individuals sponsoring and publicizing them. 139 Indeed, Guyora Binder has argued that many of those most interested in the trial viewed its role as pedagogical or symbolic. Guyora Binder, ‘Representing Nazism: Advocacy and Identity at the Trial of Klaus Barbie’, Yale Law Journal 98 (1989): 1321, 1322 (observing that the trial was viewed by some as ‘an occasion for self-improvement’). Binder quotes French government officials referring to the proceedings as ‘a pedagogic trial’, Israeli governmental officials describing the trial as ‘justice that has educational significance’, a New York Times editorial expressing hope that the trial would ‘educate a new generation’, a statement from a representative of French Resistance veterans that he hoped the trial would ‘deepen our understanding’, and a comment from Nazi-hunter Simon Wiesenthal that ‘the trial would be “a proper history lesson”, and that its true significance was “symbolic” ’. Ibid. 140 Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York: Routledge, 2001), 291–7 (listing twenty truth commissions established since 1982); Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Boston: Beacon, 1998), 53–4 (describing the establishment of truth commissions in African and South American countries). 141 Joe R. Feagin and Eileen O’Brien, ‘The Growing Movement for Reparations’, in Roy L. Brooks (ed.), When Sorry Isn’t Enough: The Controversy over Apologies and Reparations for Human Injustice (New York University Press, 1999), 341 (describing the reparations movement within the United States).

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Jurisdictional Pluralism 153 choose to defy the entity that enforces their judgments, they must appeal to a broad base of popular support or risk being treated as politically irrelevant. Likewise, a nonstate jurisdictional assertion, such as the decision to apply the norms of merchants or the pronouncements of the permanent people’s tribunals, must make a strong case to the governments of the world and other political actors that the assertion of community dominion is appropriate and that the substantive norms expressed are worth adopting. The cosmopolitan pluralist conception of jurisdiction does not imply that all assertions of jurisdiction (much less all normative rules imposed) are justified; it only argues that we extend the term jurisdiction to these non-state norm-producing acts. In this way, multiple communities can attempt to claim the mantle of law, making it more likely that we will at least notice these alternative visions, regardless of whether such visions are ultimately adopted broadly or roundly rejected.142

VIII. Building Governance Structures to Accommodate Jurisdictional Pluralism Both sovereigntists and universalists tend to view jurisdictional pluralism as a problem to be solved by stamping it out, rather than as a reality to be shaped and influenced over time. Indeed, even when jurisdictional overlap or regulatory interdependence is undeniable, we see what Robert Ahdieh has termed ‘the standard dualist response’. Law seeks to delimit each entity’s jurisdiction and authority more effectively and thereby eliminate such overlap. As Ahdieh notes, ‘Such reactions are hardly surprising. At heart, they reflect some visceral sense of law’s project as one of categorization, clear definition, and line-drawing.’143 Yet this single-minded focus on certainty and clarity not only fails to describe a globalized world of inevitable cross-border jurisdictional overlap, but also ignores the crucial question of whether leaving open space for such overlapping regulatory authority might actually be beneficial. Indeed, while jurisdictional overlap is frequently viewed as a problem because it potentially creates conflicting obligations and uncertainty, we might also view jurisdictional pluralism as a necessary adaptive feature of a multivariate, legal system. The very existence of overlapping jurisdictional claims often leads to a nuanced negotiation—either explicit or implicit—between or among the various communities making those claims.

142 Cover (n. 85), 176 (referring to law as the bridge in normative space that connects reality to ‘alternity’). 143 Robert Ahdieh, ‘Dialectical Regulation’, Connecticut Law Review 38 (2006): 863, 867.

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154 Paul Schiff Berman In focusing on the pluralist opportunities inherent in jurisdictional overlap, I echo the insights of Robert Cover’s article ‘The Uses of Jurisdictional Redundancy’.144 Cover analysed American federalism and celebrated the benefits that accrue from having multiple overlapping jurisdictional assertions. Such benefits include a greater possibility for error correction, a more robust field for norm articulation, and a larger space for c reative innovation. Moreover, when decision-makers are forced to consider the existence of other possible decision-makers, they may tend to adopt, over time, a more restrained view of their own power and come to see themselves as part of a larger tapestry of decisionmaking in which they are not the only potentially relevant voice. This is essentially the idea of relative authority already discussed. Finally, though Cover acknowledged that it might seem perverse ‘to seek out a messy and indeterminate end to conflicts which may be tied neatly together by a single authoritative verdict’, he nevertheless argued that we should ‘embrace’ a system ‘that permits tensions and conflicts of the social order’ to be played out in the jurisdictional structure of the system.145 More recently, Judith Resnik has noted the ‘multiple ports of entry’ that a federalist system creates146 and has argued that what constitutes the appropriate spheres for ‘local’, ‘national’, and ‘international’ regulation and adjudication changes over time and should not be essentialized.147 Not surprisingly, other commenters have at times advocated what amounts to a federalist approach to national/supranational relations.148 Building on these principles, we can perhaps identify two different strategies for responding to jurisdictional pluralism. On the one hand, when facing an issue of intersystemic complexity, we can seek to bring order by engaging in pre-emption, line-drawing, and delimiting separate spheres of authority. This is what Cover calls a ‘jurispathic’ approach because it necessarily requires the decision-maker to anoint one legal regime as the legitimate authority and decree that all other regimes are disabled from applying their norms.149 In doing so, the decision-maker ‘kills off ’ conflicting interpretations and authorities. The contrasting approach is what Cover would call ‘jurisgenerative’. This pluralist approach seeks modes of accommodation, deference, and hybridity that will allow multiple jurisdictions to continue to speak to a particular legal problem, without blocking the dialogue among systems. From this perspective, we might look at 144 Robert M. Cover, ‘The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation’, William and Mary Law Review 22 (1981): 639. 145 Ibid., 682. 146 Judith Resnik, ‘Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry’, Yale Law Journal 115 (2006): 1564. 147 Judith Resnik, ‘Afterword: Federalism’s Options’, Yale Law and Policy Review 14 (1996): 465, 473 (‘My point is not only that particular subject matter may go back and forth between state and federal governance but also that the tradition of allocation itself is one constantly being reworked; periodically, events prompt the revisiting of state or federal authority, and the lines move.’). 148 Mattias Kumm, ‘The Legitimacy of International Law: A Constitutional Framework of Analysis’, European Journal of International Law 15 (2004): 907, 922 (arguing that subsidiarity should be a general principle to be applied both with regard to federally structured entities and with regard to the ‘management of the national/international divide’). 149 Cover (n. 93), 53 (describing judges as inevitably ‘people of violence’ because their interpretations ‘kill off ’ competing normative assertions).

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Jurisdictional Pluralism 155 all the various forms of jurisdictional pluralism not as problems to be solved, but as opportunities to foster dialogue and open space for contestation. With regard to state-to-state jurisdictional pluralism, for example, consider Spanish efforts to assert jurisdiction over members of the Argentine military. In August 2003, Judge Baltasar Garzón sought extradition from Argentina of dozens of Argentines for human rights abuses committed under the Argentine military government in the 1970s.150 In addition, Garzón successfully sought extradition from Mexico of one former Argentine navy lieutenant who was accused of murdering hundreds of people.151 In the wake of Garzón’s actions, realist observers complained that such transnational prosecutions were illegitimate because Argentina had previously conferred amnesty on those who had been involved in the period of military rule and therefore any prosecution would infringe on Argentina’s sovereign ‘choice’ to grant amnesty.152 But the amnesty decision was not simply a unitary choice made by some unified ‘state’ of Argentina; it was a politically contested act that remained controversial within the country.153 And the Spanish extradition request itself gave then-President Nestor Kirschner more leverage in his tug-of-war with the legal establishment over the amnesty laws. Just a month after Garzón’s request, both houses of the Argentine Congress voted by large majorities to annul the laws.154 Meanwhile, the Spanish government decided that it would not make the formal extradition request to Argentina that Garzón sought, but it did so based primarily on the fact that Argentina had begun to scrap its amnesty laws and the accused would therefore be subject to domestic human rights prosecution.155 President Kirschner therefore could use Spain’s announcement to increase

150 Larry Rohter, ‘Argentine Congress Likely to Void ‘Dirty War’ Amnesties’, New York Times, 21 August 2003, A3, http://www.nytimes.com/2003/08/21/world/argentine-congress-likely-to-voiddirty-war-amnesties.html (recounting Garzón’s extradition request). 151 Emma Daly, ‘Spanish Judge Sends Argentine to Prison on Genocide Charge’, New York Times, 30 June 2003, A3, http://www.nytimes.com/2003/06/30/world/spanish-judge-sends-argentine-to-prison-on-genocide-charge.html (‘In an unusual act of international judicial cooperation, and a victory for the Spanish judge Baltasar Garzón, Mexico’s Supreme Court ruled this month that the former officer, Ricardo Miguel Cavallo, could be extradited to Spain for crimes reportedly committed in a third country, Argentina.’). 152 David B. Rivkin Jr and Lee A. Casey, ‘Crimes Outside the World’s Jurisdiction’, New York Times, 22 July 2003, A19, http://www.nytimes.com/2003/07/22/opinion/crimes-outside-the-world-s-jurisdiction. html (noting that Argentina had granted amnesty to Cavallo and arguing that ‘Judge Garzón is essentially ignoring Argentina’s own history and desires’). 153 The Argentine army, for example, made known its desire for amnesty for human rights abuses through several revolts in the late 1980s. The Argentine Congress granted amnesty after one such uprising in 1987. Joseph B. Treaster, ‘Argentine President Orders Troops to End Revolt’, New York Times, 4 December 1988, §1 [13], http://www.nytimes.com/1988/12/04/world/argentine-president-orderstroops-to-end-revolt.html (describing an army revolt in Buenos Aires). 154 ‘Argentina’s Day of Reckoning’, Chicago Tribune, 24 April 2004, C26, https://perma.cc/S5FB-FH6J. 155 Elizabeth Nash, ‘Garzón Blocked Over “Dirty War” Extraditions’, The Independent, 30 August 2003, 14; Al Goodman, ‘Spain Blocks Trials of Argentines’, CNN.com, 29 August 2003, https://perma.cc/26ATDNA5 (quoting the Spanish attorney for the victims saying that the Spanish government’s decision sends a ‘powerful message’ to Argentina’s Supreme Court to overturn the amnesty laws).

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156 Paul Schiff Berman pressure on the Argentine Supreme Court to officially overturn the amnesty laws.156 Finally, on June 14, 2005, the Argentine Supreme Court did in fact strike down the amnesty laws, thus clearing the way for domestic human rights prosecutions.157 In the wake of that decision, 772 people, nearly all from the military or secret police, were forced to face criminal charges and investigations in Argentina.158 So, in the end, the ‘sovereign’ state of Argentina made political and legal choices to repeal the amnesty laws just as it had previously made choices to create them. But in this change of heart we can see the degree to which jurisdictional pluralism may significantly alter the domestic political terrain. Likewise, Judge Garzón’s earlier efforts to assert jurisdiction over former Chilean leader Augusto Pinochet,159 though not literally ‘successful’ because Pinochet was never extradited to Spain,160 strengthened the hands of human rights advocates within Chile 156 Héctor Tobar, ‘Judge Orders Officers Freed: The Argentine Military Men Accused of Rights Abuses in the ’70s and ’80s May Still Face Trials’, Los Angeles Times, 2 September 2003, A3, https://perma.cc/ QWL6-2J8W (‘President Nestor Kirchner used Spain’s announcement to increase pressure on the Argentine Supreme Court to overturn the amnesty laws that prohibit trying the men here.’). 157 Corte Suprema de Justicia, 14/6/2005, ‘Simón, Julio Héctor y otros s/ privación ilegítima de la libertad,’ causa No. 17.768, S.1767.XXXVIII (Arg.); Press Release, Human Rights Watch, ‘Argentina: Amnesty Laws Struck Down’, 14 June 2005, https://perma.cc/86XX-YMX9. Interestingly, the Argentine Court cited as legal precedent a 2001 decision of the Inter-American Court of Human Rights striking down a similar amnesty provision in Peru as incompatible with the American Convention on Human Rights and hence without legal effect. Thus, the Inter-American Court pronouncement played an important norm-generating role, even though it was not backed by coercive force. 158 ‘Slaking a Thirst for Justice’, The Economist, 14 April 2007, 39, 40. 159 Judge Garzón issued an arrest order based on allegations of kidnappings, torture, and planned disappearances of Chilean citizens and citizens of other countries. ‘Spanish Request to Arrest General Pinochet, Oct. 16, 1998’, reprinted in Reed Brody and Michael Ratner (eds.), The Pinochet Papers: The Case of Augusto Pinochet in Spain and Britain (Berlin: Springer, 2000), 57–9 (‘The Pinochet Papers’); Anne Swardson, ‘Pinochet, Pinochet Case Tries Spanish Legal Establishment’, Washington Post, 22 October 1998, A27, https://perma.cc/5T8R-KFRH (‘As Chilean president from 1973 to 1990, Garzón’s arrest order said, Pinochet was ‘the leader of an international organization created . . . to conceive, develop and execute the systematic planning of illegal detentions [kidnappings], torture, forced relocations, assassinations and/or disappearances of numerous persons, including Argentines, Spaniards, Britons, Americans, Chileans and other nationalities.’). On 30 October 1998, the Spanish National Court ruled unanimously that Spanish courts had jurisdiction over the matter based both on the principle of universal jurisdiction (that crimes against humanity can be tried anywhere at any time) and the passive personality principle of jurisdiction (that courts may try cases if their nationals are victims of crime, regardless of where the crime was committed). ‘S Audiencia Nacional’, 5 November 1998 (No. 173/98), reprinted in The Pinochet Papers (n, 159), 95–107. For an English translation of the opinion, see ibid. The Office of the Special Prosecutor alleged that Spaniards living in Chile were among those killed under Pinochet’s rule. Ibid., 106. 160 Pinochet was physically in Great Britain. The British House of Lords ultimately ruled that Pinochet was not entitled to head-of-state immunity for acts of torture and could be extradited to Spain. Regina v Bow St Metro Stipendiary Magistrate, ex parte Pinochet (No. 3) [2000] 1 AC 147, 204–5 (HL 1999) (appeal taken from QB Divisional Court) (holding that the International Convention Against Torture, incorporated into United Kingdom law in 1988, prevented Pinochet from claiming head-of-state immunity after 1988, because the universal jurisdiction contemplated by the Convention is inconsistent with immunity for former heads of state). Nevertheless, the British government refused to extradite, citing Pinochet’s failing health. Jack Straw, Secretary of State Statement in the House of Commons (2 March 2000) in The Pinochet Papers (n. 159), 481, 482 (‘[I]n the light of th[e] medical evidence . . . I . . . conclude[d] that no purpose would be served by continuing the Spanish extradition request.’). Pinochet was eventually returned to Chile.

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Jurisdictional Pluralism 157 itself and provided the impetus for a movement that led to a Chilean Supreme Court decision stripping Pinochet of his lifetime immunity.161 In 2006 the Chilean court further ruled that Chile was subject to the Geneva Conventions during the period of Pinochet’s rule and that neither statutes of limitations nor amnesties could be invoked to block prosecutions for serious violations of the Conventions, such as war crimes or crimes against humanity.162 Subsequently, almost 150 people, including nearly 50 military officers, were convicted for human rights violations committed during this era, and over 400 more suspects, mostly from the armed forces, were indicted or placed under investigation.163 Turning to international assertions of jurisdiction, we can see again that even the potential jurisdictional assertion of an alternative norm-generating community can put pressure on local politics. For example, when the United Nations creates international commissions of inquiry concerning alleged atrocities or threatens prosecutions in international courts, such acts can empower reformers within local bureaucracies, who can then argue for institutional changes as a way of staving off international interference. Thus, in the aftermath of the violence in East Timor that followed its vote for independence in 1999, there were grave concerns that the Indonesian government would not pursue human rights investigations of the military personnel allegedly responsible for the violence.164 Accordingly, an International Commission of Inquiry was established, and UN officials warned that an international court might be necessary.165 As with Argentina, such actions strengthened the hand of reformers within Indonesia, such as then-Attorney General Marzuki Darusman. With the spectre of international action hanging over Indonesia, Darusman made several statements arguing that, for nationalist reasons, a hard-hitting Indonesian investigation was necessary in order to forestall an international takeover of the process.166 Not surprisingly, when this international pressure dissipated after the terrorist attacks of 11 September 2001 so did the momentum to provide real accountability in Indonesia for the atrocities committed.167 161 ‘Chile’s Top Court Strips Pinochet of Immunity’, New York Times, 27 August 2004, A3, http://www. nytimes.com/2004/08/27/world/chile-s-top-court-strips-pinochet-of-immunity.html (‘Chile’s Supreme Court stripped the former dictator Augusto Pinochet of immunity from prosecution in a notorious human rights case on Thursday, raising hopes of victims that he may finally face trial for abuses during his 17-year rule.’). 162 ‘Slaking a Thirst for Justice’ (n. 158), 39. 163 Ibid., 39–40. 164 Laura A. Dickinson, ‘The Dance of Complementarity: Relationships among Domestic, International, and Transnational Accountability Mechanisms in East Timor and Indonesia’, in Jane E. Stromseth (ed.), Accountability for Atrocities: National and International Responses (Leiden: Brill-Nijhoff, 2003), 319, 358–61 (discussing ways in which international pressure on Indonesia in the period just after East Timor gained its independence strengthened the hand of reformers within the Indonesian government to push for robust domestic accountability mechanisms for atrocities committed during the period leading up to the independence vote). 165 Ibid., 358–9. 166 Ibid., 360 (documenting the response of the Indonesian government, which appointed an investigative team, identified priority cases, named suspects, and collected evidence). 167 Ibid., 364–6 (discussing the shifting priorities of the Bush administration following the 9/11 attacks and tracing the impact of outside pressure in efforts to hold individuals accountable for the violence in East Timor).

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158 Paul Schiff Berman The complementarity regime of the International Criminal Court is a more formalized way of harnessing the potential power of jurisdictional pluralism. Pursuant to Article 17, the Court cannot prosecute someone unless the suspect’s home country is unwilling or unable to investigate.168 Here the idea is that when two legal communities claim jurisdiction over an actor, one community agrees not to assert jurisdiction, but only so long as the other community takes action. Thus, although one community does not hierarchically impose a solution on the other, it does assert influence on the other’s domestic process through its mere presence as a potential jurisdictional actor in the future. Of course, we should not assume that international jurisdictional assertions always work as a force for increased human rights protections. Indeed, as Kim Lane Scheppele has documented, Security Council resolutions passed in the early 2000s required countries to enact antiterrorism legislation and adjust antiterrorism policies, regardless of domestic, constitutionally based, civil liberties concerns.169 Nevertheless, the important point is to see jurisdictional pluralism in the state and supranational spheres as a hybrid legal space where alternative norms are proposed and contested. Finally, it is important to note that building governance structures to accommodate jurisdictional pluralism might also be relevant with regard to non-state normative communities. For example, many states carve out zones of autonomy or concurrent jurisdiction for religious authorities and tribunals.170 Likewise, one might see the entire investor and commercial arbitration system as an alternative form of jurisdiction that operates largely independent of any state. And, as discussed previously, many non-state organizations, such as universities, sports leagues, stock exchanges, standard-setting bodies, and so on, also wield various forms of authority, at least within delineated spheres. Of course, all of this jurisdictional pluralism might be seen as perhaps necessary, but regrettable concessions to the realities of a world of normative disagreement. Such a view would focus on concerns about forum-shopping, uncertainty about applicable rules, litigation costs, and so forth. In order to minimize such difficulties, we might seek international harmonization to reduce normative disagreement, or strict territorialist rules to cut off some of the overlap. But, as discussed previously, such efforts are unlikely ever to be fully practical. Thus, jurisdictional pluralism is likely to continue to be a reality. Moreover, the pluralist framework allows us to see ways in which jurisdictional pluralism might not only be inevitable, but also perhaps sometimes a generative feature of a hybrid legal world, and not simply a problem to be eliminated. 168 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, Art. 17. 169 Kim Scheppele, ‘The International Standardization of National Security Law’, Journal of National Security Law and Policy 4 (2010): 437), https://perma.cc/CL8A-3WKN. 170 Paul Schiff Berman, ‘Global Legal Pluralism’, South California Law Review 80 (2007): 1155, 1203–7 (summarizing such limited autonomy schemes); Michael Avi Helfand, ‘Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders’, New York University Law Review 86 (2011): 1236 (discussing relationship between religious law and secular courts when such courts are asked to enforce arbitration agreements grounded in religious law and adjudicated by religious courts).

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Jurisdictional Pluralism 159

IX. Conclusion Viewing the concept of jurisdiction through the lens of legal pluralism opens up a wide range of inquiries that tend to be ignored or suppressed in most legal discussions of jurisdiction. First, we can interrogate the presumed naturalness of using territorially delineated nation-state boundaries as the sole basis for understanding legal jurisdiction. Such interrogation is particularly important in a data-driven era when many aspects of social life are far less tied to territorial location than they once were. Just as shifts in communications and transportation technology spurred changes in jurisdictional rules from the nineteenth to the twentieth century, jurisdictional rules are now again being thrown into flux by the cross-border data flows of the twenty-first century. Second, legal pluralism helps provide a theoretical framework for conceptualizing how governments must operate in a world of relative, rather than absolute, authority. Such a framework provides an alternative to formalistic conceptions of sovereignty that fail to capture the complex interrelationship of both state and non-state communities and their overlapping spheres of authority and power. By understanding how states negotiate among competing authorities we develop a far more complex account of a world of alternative jurisdictional assertions. Third, we can come to see the assertion of jurisdiction itself as a site of contestation and a source of alternative norms. Indeed, nearly any survey of legal history reveals that jurisdiction has always been a way for various communities to contest authority and assert competing normative visions. Instead of erasing that contestation by insisting that one jurisdictional assertion has ‘legitimate’ authority and others do not, a pluralist frame allows us to see the conflicts, accommodations, and strategic action that accompanies jurisdictional pluralism. Indeed, all assertions of jurisdiction are really forms of jurispersuasion because decision-makers articulating norms must always persuade others that those norms are worthy of enforcement. Fourth, a cosmopolitan pluralist approach to jurisdiction recognizes the multiple communities that people might belong to or that might assert jurisdictional authority. Such communities extend from the most local to the most global, and can be defined not only by a formal government, but also by other claims to affiliation, whether religion, ethnicity, trade, interest or some other factor. Cosmopolitan pluralism therefore occupies a theoretical middle ground between sovereigntist territorialism on the one hand and universalism on the other. Finally, rather than seeing jurisdictional pluralism only as a problem to be solved through often arbitrary line-drawing, we might also view such pluralism as a potentially useful way of allowing tensions in social life to play out in the legal arena. Overlapping jurisdictional claims create ports of entry for those unheard in other forums and also provide sites of contestation that may create explicit or implicit dialogue among the various communities making those claims. Federalist systems live such tensions on a

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160 Paul Schiff Berman day-to-day basis, arguably creating laboratories for innovation, but the existence of transnational, international, or non-state assertions of jurisdiction can also create opportunities for productive dialogue among conflicting norms and community assertions. In short, jurisdictional pluralism is both a descriptive reality, a theoretical framework, and a potentially productive institutional design choice. And while a recognition of jurisdictional pluralism will not ‘solve’ difficult jurisdictional problems, that is in some sense beside the point. After all, no rules of jurisdiction will ever fully solve jurisdictional problems. Jurisdictional contestation—for better or worse—is an inherent feature of living in a world with multiple overlapping communities. And so at least sometimes it might be worthwhile to step back and notice the contestation, rather than simply wishing it away. And perhaps by doing so, we will develop more nuanced jurisdictional models for the increasingly deterritorialized, data-driven era in which we find ourselves.

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Chapter 8

Deepen i ng the Con v ersation bet w een Socio -L ega l Theory a n d L ega l Schol a rship a bou t J u r isdiction Mariana Valverde

I. Introduction: A Two-Way Relationship between Social Theory and Legal Studies

162

II. Scale Shifting in Legal Contexts: Beyond Jurisdiction

165

III. Beyond Space: The Work of Law’s Many Temporal Scales

170

IV. The Materiality of Legal Actors and Processes

175

V. Does Law Have Moods? Narratives, Genres, and Affect

178

VI. Conclusion

180

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162 mariana valverde

I. Introduction: A Two-Way Relationship between Social Theory and Legal Studies As a social theorist who is not a lawyer, international or otherwise, but who has thought a great deal about the work done by jurisdiction in law and in everyday governance, this chapter might not be what legal scholars might expect: I do not plan to offer a readymade, all-encompassing theoretical apparatus that lawyers can ‘apply’. Instead, my more modest aim is to introduce and briefly explain a few resources that may prove useful when analysing legal and governance issues. Many people engaged in the sociology of law speak as if the only way to address the theoretical dilemmas which legal actors, as well as scholars, face were to impose a general model of power, one generally derived from non-legal fields (such as communication studies, normative political theory, or Marxist political economy). Of course, the line between the legal and the non-legal is hardly a solid one;1 but nevertheless, any general theory elaborated primarily to understand non-legal phenomena is unlikely to have much to say about the specificities of the legal domain. Rejecting this ‘have theory, will travel’ approach, I have been promoting a more dynamic and interactive model of the relationship between the legal field, however fluidly it is delineated, and social theory. I have argued that social theorists who want to engage with and contribute to socio-legal scholarship can draw on actual legal quandaries and real-world governance dilemmas to help generate theoretical insights that may perhaps borrow their underlying e pistemology from non-legal theorists (in my own case, from a variety of sources including Nietzsche, Mikhail Bakhtin, and Michel Foucault), but that also draw substantially on close studies of legal processes, in particular, the often ignored theoretical significance of law’s own procedures and knowledge moves. In developing the approach which I have called using ‘legal technicalities as resources for theory’,2 I have greatly benefited from the pioneering work of legal scholar Annelise Riles.3 Riles has done a great deal to show, against the grain of both European and North American sociology of law, that law’s own thinking habits and governing practices can be the source of theoretical innovation as well as policy guidance. One article of particular interest to this book’s readers demonstrates the fruitfulness of this almost neo-formalist approach in showing (among other things) that the technical procedures of American conflict of laws jurisprudence can shed much light on the 1 Fleur Johns, Non-Legality in International Law: Unruly Law (New York: Cambridge University Press, 2013). 2 Mariana Valverde, ‘Jurisdiction and Scale: Legal “Technicalities” as Resources for Theory’, Social and Legal Studies 18(2) (2009): 139–57; cf. Mariana Valverde, Chronotopes of Law: Jurisdiction, Scale and Governance (London: Routledge, 2015). 3 Annelise Riles ‘A New Agenda for the Cultural Study of Law: Taking on the Technicalities’, Buffalo Law Review 53(5) (2005): 973–1034; Annelise Riles, Collaterial Knowledge: Legal Reasoning in the Global Financial Markets (Chicago: University of Chicago Press, 2011).

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Socio-Legal Theory, Legal Scholarship, and Jurisdiction 163 ell-known theoretical dilemmas posed by regulatory arbitrage, dilemmas with important w practical implications for national and international policymakers.4 In an atmosphere in which a great number of philosophical paradigms and methodological toolboxes coexist, with theoretical work on law being as highly fragmented as theoretical work on any field in the social sciences and humanities, choosing to read widely in philosophy and in the social sciences but then paying close attention to the theoretical possibilities and problems that the functioning of the legal system throws up has a great deal of potential. Philosophical and political preferences can be set aside to a significant extent if we choose to collectively experiment with this largely pragmatist approach. The rest of the chapter is divided into five sections. The first explores the connection— and also the disjunctions—between jurisdiction and scale. The term ‘scale’ is clearly not a legal term; however, recent research by international and transnational lawyers documents the legal causes and effects of what geographers call ‘scale shifting’ and/or ‘multi-scalar governance’, despite not using the terms.5 It is not thus impermissible to ask, in this chapter, whether the work done by choosing one scale rather than another to govern a problem—that is, the dynamic that geographers call scale shifting—can illuminate the workings of legal jurisdiction, in keeping with the by now venerable socio-legal argument that understanding governance and norm-formation in quasi-legal contexts can be useful for legal scholarship. Recent work on scale shifting and ‘multiscalar governance’ could be useful for legal scholars grappling with jurisdictional questions and problems because, while scale of governance and legal jurisdiction are often coterminous, they sometimes diverge, and they are not necessarily causally related.6 The argument to be made there, in a nutshell, is that while legal scholars focus their attention on the question of who governs, who has jurisdiction, they neglect to see that choosing who governs determines, for the most part, how something or someone is to be governed. The ‘how’ of governance does not usually appear explicitly as a legal question, but it is often just exactly what is at stake.

4 Annelise Riles, ‘Managing Regulatory Arbitrage: A Conflict of Laws Approach’, Cornell International Law Journal 47(1) (2014): 64–120. 5 Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (Cambridge: Cambridge University Press, 2012); Luis Eslava, Local Space, Global Life: The Everyday Operation of International Law and Development (Cambridge: Cambridge University Press, 2015). Peer Zumbansen, ‘Transnational Legal Pluralism’, Transnational Legal Theory 1(2) (2010): 141–89; Gavin Sullivan, ‘Transnational Legal Assemblages and Global Security Law: Topologies and Temporalities of the List’, Transnational Legal Theory 5(1) (2014): 81–127. 6 Luis Eslava’s careful analysis of the interactive dynamics that result in particular forms of urban governance in Bogota shows that national constitutional norms about decentralization, global trends in ‘law and development’, global norms about environmental protection, and local legal norms about housing and property all interact in a non-zero-sum manner. Urban governance is thus shown to be taking place at multiple scales at the same time. Eslava (n. 5). A similar, though more legal than empirical, argument about how to study local governance is provided by Yishai Blank, ‘The City and the World’, Columbia Journal of Transnational Law 44 (2006): 875–941.

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164 mariana valverde The second section deepens the exploration of scale by drawing attention—in line with recent work on law’s temporalities7—to the importance of temporal as well as spatial scales in legal contexts, including in legal doctrine. The importance of temporalization in legal processes is highly variable, so that temporal shifts or legally created temporalities do not always play an important role; but the choice of particular temporal scales, and the consequences that flow from temporal scale choices, do sometimes play a key role in constituting legal objects and adjudicating disputes, either independently or intertwined with specific spatial scales. The third section turns towards another dimension of legal existence that (along with temporality) is generally suppressed in law’s own texts, namely, materiality. Recent work criticizing conventional social science for dealing only in invisible, abstract ‘social’ structures and forces and neglecting the materiality of social life has had some echo in legal scholarship, but could be of particular use in thinking jurisdiction.8 Recent work on the political and legal effects of particular materialities (which has in many cases been influenced by the hugely popular ‘Actor Network Theory’ that originated within studies of scientific work) could perhaps help legal scholarship to critically reflect not only on the legal significance of various objects and non-human living beings, but also on the specific features and implications of the numerous ontological and temporal fictions that have to be produced in legal argument. The fourth section takes up another dimension of jurisdictional argument neglected by most legal scholars (and by the majority of sociologists and political scientists as well), namely ‘affect’. Mikhail Bakhtin’s explorations of the characteristic ‘mood’ of each literary genre will be adapted to show that just as an everyday story is never original in its format and in its spatiotemporal logic, legal narratives too are never unique.9 Legal narratives necessarily draw on a limited repertoire of ‘genres’ that become, through citation, reiteration, and hybridization, specifically legal genres. Like literary genres, legal genres are identifiable by a typical mood. If one pays attention to the narrative quality of legal arguments and legal texts, one can then explore the legal and quasi-legal effects of the mood (here meaning a combination of aesthetic/rhetorical and affective dimensions) that characterizes various genres on which all legal narratives rely. The final section returns to the issue of the status of social theory within legal studies and encourages readers to experiment with borrowing notions such as multi-scalar governance, spatio-temporality, materiality, and affect—not by way of ‘applying’ a systematic theory, but in the pragmatist spirit of creatively borrowing tools from diverse sources, including tools arising from law’s own ‘technicalities’. 7 See e.g. Emily Grabham, Brewing Legal Times: Things, Form, and the Enactment of Law (Toronto: University of Toronto Press, 2016). 8 Bruno Latour, Reassembling the Social: An Introduction to Actor-Network Theory (Oxford: Oxford University Press, 2005); Michelle Murphy, The Economization of Life (Durham: Duke University Press, 2017). 9 The key work referenced here is Bakhtin’s long essay, ‘Forms of Time and the Chronotope in the Novel’, which is found in the collection Mikhail Bakhtin, The Dialogical Imagination: Four Essays (Austin: University of Texas Press, 2008). My argument about the applicability of Bakhtin’s analysis of literary genres to legal discourse is elaborated in Mariana Valverde, Chronotopes of Law: Jurisdiction, Scale, and Governance (London: Routledge, 2015).

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II. Scale Shifting in Legal Contexts: Beyond Jurisdiction International lawyers tend to limit the scope of jurisdictional inquiries to situations in which state sovereignties conflict, or those in which state sovereignty may or may not be limited by supra-state treaties or permanent bodies such as the European Union.10 This limitation is aided and abetted by a tacit agreement amongst legal scholars generally to re-describe jurisdictional conflicts that do not easily fall into either of those two categories (competing state sovereignties and state vs supra-state body disputes) under other names. ‘Conflicts of laws’ American jurisprudence is an excellent example of an area of legal practice and scholarship that could easily be re-described as part of the larger field of jurisdiction, rather than as an out-of-the-way subfield associated with private law and thus kept separate from public international law. Another example of a legal field that has quite direct implications for the international law of jurisdiction, but is rarely if ever mentioned, concerns cases involving the relative autonomy of Amerindian nations, including Indigenous/Native title litigation in Canadian and Australian courts.11 Finally, a field of law that is not international, but where jurisdiction is the central issue, and could thus be potentially of interest to public lawyers working at other scales, is the historically rich jurisprudence on what is and is not ‘ultra vires’ elaborated by courts pondering the powers and limitations of city councils and other municipal (in the sense of local) authorities.12 Conflicts about who does or should govern, about whose law prevails, and about how conflicting or concurrent powers can be reconciled, are the lifeblood of many appeal courts that do not deal in state sovereignty—and are also the lifeblood of a host of legislative and executive bodies: ministries of intergovernmental affairs, ministries of municipal affairs, federal and state bodies concerned with Indigenous affairs, and so on. Taking the term ‘jurisdiction’ to encompass all of these spheres may look to some like a perverse project to ignore the boundaries between different legal fields—but thinking about jurisdiction in this much broader sense13 can help to illuminate important questions about power, authority, and law that go beyond sovereignty, or that simply put sovereignty in brackets while substantive questions about power and authority are

10 A somewhat similar argument about the need to expand jurisdictional analysis to encompass all manner of authorities and norm-setting regimes has been made by Sundhya Pahuja, ‘Laws of Encounter: A Jurisdictional Account of International Law’, London Review of International Law 1(1) (2013): 63–98. 11 This approach is also taken in Shauna Dorsett and Shaun McVeigh, Jurisdiction (London: Routledge/ Cavendish, 2013). My deep thanks to Shaun McVeigh for a long conversation in September 2017 on how to study jurisdiction, though I hasten to add he is not responsible for any of this chapter’s interpretations. 12 See Blank (n. 6). 13 Shaun McVeigh (ed.), Jurisprudence of Jurisdiction (London: Routledge, 2007).

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166 mariana valverde fought out on other grounds.14 To give but one example: the sovereignty of the Canadian state is almost never explicitly challenged in Indigenous rights cases litigated in Canadian courts (there are radical Indigenous activists who do claim Indigenous sovereignty, but for that very reason they stay away from courts). But a great deal of judicial activity in Canadian appeal courts has brought about changes that amount to a significant redistribution of jurisdiction, without judges having to directly question the imperial/ colonial nation-founding act routinely described as ‘the assertion of sovereignty’.15 In these kinds of cases, arguably quite relevant to this Handbook’s interests, despite the ‘blackboxing’ of sovereignty, jurisdiction appears as a flexible and often multi-scalar game of power, rather than as a zero-sum game of territorial sovereignty. Therefore, in these disputes, jurisdiction is more likely to be functionally based than territorial. Attending to cases in which jurisdiction appears without sovereignty, as it were, helps to highlight the contingency of territoriality as a way of seeing land as well as a way of exercising power.16 It also underlines the importance of what geographers call scale shifting, a move which often coincides with jurisdictional claims, but not always. Legal manoeuvres make use of existing scalar distributions of power and governance, and in turn contribute to the endless shifts of knowledge and power from one scale to another that characterize governance in virtually all spheres, from the familial to the corporate, the legislative, and the judicial arenas. This was an insight most influentially articulated in 1987 by Boaventura de Sousa Santos, in ‘Law: A Map of Misreading’.17 Santos’s much-cited argument is that law’s work can be usefully analogized to mapping, and that it is important to recognize that legal mechanisms always operate at a particular scale and use a specific ‘projection’ to represent reality, as do maps. However, Santos’s article tends to assume that the local, the national, and the international are three clearly distinct scales—and then proceeds as if these three problematically unified scales are the only ones that matter. Legal geographers using Santos’s work, who are legion,18 have not explicitly challenged his oversimplification of scale; but is important for present purposes to do so, in order to 14 An early argument about the need to de-centre national territoriality in the study of jurisdiction, foreshadowing transnational legal pluralism in a more political vein, was made by Robert Malley, Jean Manas, and Crystal Nix in ‘Note: Constructing the State Extra-Territorially: Jurisdictional Discourse, the National Interest and Transnational Norms’, Harvard Law Review 103 (1990): 1273. Thanks to Karen Knop for this reference—and for detailed comments on an earlier draft of this chapter, though remaining flaws and infelicities are mine. 15 Mariana Valverde, ‘The Crown in a Multicultural Age: The Changing Epistemology of (Post)Colonial Sovereignty’, Social and Legal Studies 21(1|) (2012): 3–21. 16 On territoriality, see Stuart Elden, The Birth of Territory (Chicago: University of Chicago Press, 2013). Unfortunately, the profound implications that Elden’s monumental work has for legal discussions of jurisdiction, territory, and sovereignty remain undeveloped. 17 Boaventura de Sousa Santos, ‘Law: A Map of Misreading. Toward a Postmodern Conception of Law’, Journal of Law and Society 14(3) (1987): 279–302. 18 Two important collections featuring many of the field’s major authors are: Nicholas Blomley, David Delaney, and Richard Ford (eds.), The Legal Geographies Reader (Oxford: Blackwell, 2001) and Nicholas Blomley et al., The Expanding Spaces of Law: A Timely Legal Geography (Stanford: Stanford University Press, 2016). Santos’s article is acknowledged as a seminal piece that later provoked the development of ‘law and space’ and ‘legal geography’ as subfields within socio-legal studies.

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Socio-Legal Theory, Legal Scholarship, and Jurisdiction 167 avoid importing, through the uneasy slippage between scale and jurisdiction, an impoverished, Russian-doll oversimplification of the complex dynamics of actually existing jurisdiction games. First of all, Santos’s threefold division of legal work (local, national, international/supranational) oversimplifies jurisdiction by neglecting nonterritorial jurisdictions. Second, and perhaps more importantly, the three-level model also hides from view the rich array of overlapping, often site-specific state-authorized bodies that a broad definition of legal pluralism (otherwise promoted by Santos himself) would include. These include expert administrative tribunals; private arbitration and mediation mechanisms; international trade dispute mechanisms; American Indian courts; and, last but not least, the dizzying array of ‘special purpose districts’ and public agencies, boards, and commissions that not only provide utilities and other services but also enjoy certain, often unique, jurisdictions, such as special taxing powers or special planning/zoning authority. These jurisdictions, which overlap with one another as well as with the territorial jurisdictions of municipalities, counties, provinces, etc., are generally ignored by legal scholars, perhaps because they are usually space-specific, and generally work as if they were municipal by-laws rather than state laws.19 Finally, Santos’s threefold division also—and relatedly—is rather static, which oversimplifies the power and knowledge effects of scale and scale shifting. This is an ironic consequence, since the main purpose of the famous article was to draw attention to law’s scalar effects. As it has become clear in numerous studies since Santos published his seminal piece, just as jurisdiction is not limited to territorially based authority claims, so too the work of scale is not limited to what one can do by using Google Earth’s zoom-in and zoom-out capabilities. Theoretical geographers and social theorists20 have shown quite conclusively that scale is not merely quantitative. Neil Brenner and Erik Syngedouw are influential figures amongst the numerous geographers and urban studies scholars who have deepened our understanding of the complex ways in which the re-scaling of problems and issues constantly taking place not only in intergovernmental circles but also in civil society is an open-ended game of power whose consequences cannot always be predicted, and need to be explored in detail.21 In this literature, ‘re-scaling’ is taken not as a simple change by which power is taken from one ‘map’, one way of seeing, and given to another, but rather as a fluid and non-zero-sum process whereby different jurisdictions and different scales can coexist in a single space—as in Eric Syngedouw’s successful neologism, ‘glocalization’, which was very usefully deployed to critique scholars who 19 For a brief history of this type of public authority in North America, see Mariana Valverde, ‘Ad Hoc Governance: Public Authorities and North American Local Infrastructure in Historical Perspective’, in Michelle Brady and Randy K. Lippert (eds.), Governing Practices: Neoliberalism, Governmentality, and the Ethnographic Imaginary (Toronto: University of Toronto Press, 2016), 199–220. 20 Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: Princeton University Press, 2006). 21 N. Brenner et al. (eds.), State/Space: A Reader (Malden: Blackwell Publishing, 2003); Neil Brenner, ‘Urban Governance and the Production of New State Spaces in Western Europe, 1960–2000’, Review of International Political Economy 11(3) (2004): 447–488; Erik Swyngedouw, ‘Authoritarian Governance, Power, and the Politics of Rescaling’, Environment and Planning D: Society and Space 18(1) (2000): 63–76.

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168 mariana valverde were in the early 1990s enthusiastically embracing the idea that globalization is a single and unidirectional process.22 As Brenner, Syngedouw, and many others have shown,23 scalar questions are not reducible to questions of quantity of territory. And more generally, just as jurisdictional dynamics cannot be reduced to tallies of who has more power, quantitatively, so too the work that scale does is not amenable to quantification. A well-known example of the importance of qualitative scale shifting (one that has been amply used in urban planning scholarship, but not in legal scholarship) can be found in Michel de Certeau’s seminal analysis of the contrast between the representation of a city generated by a specific human being going for walks and narrating them, on the one hand, and on the other hand a depiction of the same urban area generated by taking a bird’s-eye view and drawing a conventional map from that standpoint.24 All legal representations need to adopt one and only one scale at a time, or else they would be as unintelligible as a map that attempted to use three scales at once; but it can be very useful, when analysing such representations, to regard the ‘scale’ that has been chosen as encompassing qualitative distinctions between alternative perspectives, not just different amounts of space covered. A relevant example from my own empirical research on urban law may make the point clearer. Many governance implications flow from the ‘technical’ differences between zoning maps used by planners, on the one hand, and the drawings, generally produced by landscape architects, that depict the same space (a city block, a particular street corner), but show how the buildings and the streetscape, future or present, look or would look to a hypothetical lay passer-by. Adjudicators are well aware of the fact that these two types of representations are qualitatively different, indeed incommensurable. It is obvious to practitioners that when using zoning as the only perspective/scale, an adjudicator can split the difference between the city’s rules and a developer’s plan in order to arrive at a ruling about building height; but the differences between a zoning map and a competing landscape architect’s drawings cannot be quantitatively settled. They are as incommensurable as the differences between a walking tour of a neighbourhood and a conventional map of the same area. This is hardly news: in everyday life people frequently shuffle representations that use incommensurable scales, without any epistemological crisis ensuing. But what is more significant from the point of view of theorizing power and law is that, as de Certeau himself and many other scholars since have pointed out, shifting scale is always also a quiet way of shifting from one mode of knowledge and power to another. Thus, there are 22 Erik Swyngedouw, ‘Neither Global nor Local: Glocalization and the Politics of Scale’, in Kevin R. Cox (ed.), Spaces of Globalization: Reasserting the Power of the Local (New York: Guilford Publications, 1997), 137–66. 23 Inter alia, see Calvin King Chung and Jiang Xu, ‘Scale As Both Material and Discursive: A View through China’s Rescaling of Urban Planning System for Environmental Governance’, Environment and Planning C: Government and Policy 34(8) (2016): 1404–24; F. Moulaert, A. Rodriguez, and E. Swyngedouw, The Globalized City: Economic Restructuring and Social Polarization in European Cities (Oxford: Oxford University Press, 2005). 24 Michel de Certeau, The Practice of Everyday Life (Berkeley: University of California Press, 2011).

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Socio-Legal Theory, Legal Scholarship, and Jurisdiction 169 implications for legal theory arising from the incommensurability of representational practices that, as just mentioned, is taken as a fact of life by lawyers and adjudicators. That the conventional bird’s-eye-view map embodies a modernizing, ‘seeing like a state’ gaze25 whose key aspiration is to render space calculable and standardizable so as to facilitate the governance of people and problems through expert and preferably quantitative knowledges, is by now an established social science insight, often associated with the name of Michel Foucault but widely accepted by feminist, postcolonial and neoMarxist thinkers alike. Shifting this insight to a legal register, the extent to which certain international as well as national jurisdictions adopt the ‘bird’s-eye-view’ scale in such a way as to render a parcel of land or some expanse of ocean fixed, calculable, and standardizable (whether or not actual maps are deployed) is a question that has started to be explored in many contexts, often by legal historians. Postcolonial socio-legal scholars in particular have shown that practices of mapping were not only necessary to build and defend imperial claims but were in some ways constitutive of empire itself, including the property relations of colonialism. Postcolonial socio-legal scholars have generally accepted the claim (elaborated among others by James Scott, Michel Foucault, and Michel de Certeau) that to see space or land as an abstract homogeneous fungible substance that can be parcelled out by drawing straight lines on a paper is not just a pre-legal precondition or non-legal underpinning, but is itself a legal practice, specifically an imperial legal practice. Mapping practices may have preceded imperial legal claims of both property and jurisdiction, chronologically; but once law learns to ‘see like a state’, legal practices themselves produce the homogenous abstract space that both territorialization and property relations require. Recent Indigenous legal claims about the specific spiritual and ecological features of particular bits of land and water have helped to underscore the Eurocentric and modernist particularity of the qualitative-scale assumptions that undergird conventional maps and many conventional state practices of land governance, including legal practices. Generalizing from this kind of research on scales, maps, land, and legal power, one could challenge conventional definitions of jurisdiction by concluding that adopting a particular scale is precisely what a particular jurisdiction does. To conclude this section on the work of scale: current theoretical work on scale and the political effects of scale shifts draws attention to the fact—the legal fact—that in legal disputes about jurisdiction, adjudicating the issue of who governs, and/or the related but not identical question of whose law governs, has the effect (which could well be intended rather than unintended, depending on the situation) of determining how something or someone is to be governed. Whether a matter (say, a transnational child custody dispute) ends up being deemed to be within the criminal jurisdiction of state A or that of country B, it will nonetheless be governed very differently if the matter is deemed to be within the family-law jurisdiction of either country A or country B. Country A and B are unlikely to have identical family law statutes, but it is safe to assume that family law principles differ more from the principles of the criminal law of the same country than 25 James C. Scott, Seeing Like a State (New Haven: Yale University Press, 1998).

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170 mariana valverde they do from those prevailing in the family law jurisprudence of a neighbouring country. It could thus be useful, when thinking about the work that jurisdiction does, to borrow insights from scholars who have analysed scale and scale shifting and have drawn attention to the qualitative and non-spatial dimensions of scale shifts, and who in addition have shown that allocating authority (the ‘who governs’ question) has the effect of deciding how something or someone is to be governed.26 When legal scholars’ attention is focused exclusively on the question of who governs, this has the effect of preventing the ‘how’ of governing from being directly challenged or discussed.

III. Beyond Space: The Work of Law’s Many Temporal Scales We have just seen that scale and scale shifting, which can coincide with jurisdictional boundaries but does not always do so, cannot be reduced to the question of amount of space covered. The issues signalled by what the previous section called ‘qualitative scale’ differences—that is, differences among different, established forms of legal visualization— begin to raise a question that is often relegated to obscure corners of the philosophical academy, but that has important practical implications for legal analysis: the question of temporality. Just as legal mechanisms tend to presuppose, and reproduce, particular practices of spatialization (including that of territoriality, the key epistemological support of traditional state sovereignty),27 so too legal mechanisms often rely on or even create specific temporalizations, which then become part of law itself. A legal scholar who has devoted much thought to analysing how routine legal processes and requirements create a demand for often quite arbitrary temporalities is Emily Grabham.28 That abortion law imposes a peculiar singular-point temporality on the drawn-out experience of pregnancy, in a rather futile effort to draw sharp, fixed temporal lines around legal personhood, is perhaps obvious. But Grabham also explores the workings of far less visible and less politicized legal temporalities to great effect, such as the qualification period required before one can draw unemployment benefits. Another example of law’s temporal inventions, this one drawn not from Grabham’s innovative book but from my own research, is the provision first contained in corporate charters and then copied in general incorporation statutes—namely, the power of ‘perpetual succession’: a temporalization not available to ordinary humans that is clearly a product of law. This may seem to have little relevance to international law, but when one considers the history of corporate governance of the international by means of 26 This is foreshadowed, implicitly, in Frances Olsen, ‘The Family and the Market: A Study of Ideology and Law Reform’, Harvard Law Review 96(7) (1983): 1497–578. 27 Elden (n. 16). 28 Grabham (n. 7).

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Socio-Legal Theory, Legal Scholarship, and Jurisdiction 171 c ompanies with quasi-state powers, such as the Hudson’s Bay Company and the Dutch East India Company, the importance of the ‘perpetual succession’ trick for many fields of law and governance perhaps becomes more apparent.29 Even more directly relevant to public law, a recent article in the top American political science journal convincingly argues that contrary to the Lockean myth of the United States being founded and formed through a social contract, the key legal technology of the US constitution is in fact that of the corporate charter—with ‘the people of the United States’ having replaced the monarch as the power grounding and establishing the respective jurisdictions of state and federal governments, and, according to Ciepley, even the mechanism of judicial review.30 That the state and the corporation are not wholly separate even in law was a point famously made long ago by Frederick Maitland,31 but Ciepley’s innovative article further shows that republican government does not break as much as one might think with such ancient common law doctrines as the notion that the Crown is a corporation sole. In keeping with Fleur Johns’s argument that the ‘outside’ and the ‘inside’ of law are not separate spaces or fields, ontologically or epistemologically,32 the temporalization effected in the ‘perpetual succession’ clause shows the constitutive power of law; but the legal ‘invention’ relies heavily on a pre-modern temporalization produced not within law but by Christian theology. Ernst Kantorowicz’s erudite work on the quasi-divine temporalization of European sovereignty contains a little-cited digression on the temporalization of corporations in European law. The ‘perpetual succession’ standard clause, he notes, recreates and deploys Christian theology’s views about the temporality of angels—angels being immortal, rather than eternal like God himself.33 Thus, the distinction between an immortal being and an eternal being, that Christian theology elaborated through reflections on angels, was transposed into a legal register— to the great benefit of capital and capitalists (as well as municipal and other public corporations). But once inscribed in law, the immortality of the corporation shed its theological origins and became secularized, even naturalized. Whiffs of the divine are apparent in current-day invocations of state sovereignty;34 but Kantorowicz’s explorations of the temporality of Christian angels are unlikely to be mentioned in corporate law courses.

29 Inter alia, Philip Stern, The Company-State: Corporate Sovereignty and the Early Modern Foundations of the British Empire in India (Oxford: Oxford University Press, 2011). 30 David Ciepley, ‘Is the U.S. Government a Corporation? The Corporate Origins of Modern Constitutionalism’, American Political Science Review 111(2) (2017): 418–35. 31 F. W. Maitland (ed.), State, Trust and Corp. (Cambridge: Cambridge University Press, 2003). 32 Johns (n. 1). 33 Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton University Press, 1957), 282. I thank Anver Eamon for initiating a group discussion on Kantorowicz that exposed me to legal and historical research on jurisdiction with which I was not familiar. 34 Valverde (n. 15), 3–21.

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172 mariana valverde In the nineteenth century, the immortal corporation quickly became one pole of a symbiotic relationship that was constitutive of liberal democratic societies, as follows.35 The crown/the state would go on to give proof of its unique jurisdiction by monopolizing the power to create corporations (just as God had showed his divinity by creating angels as well as humans). In turn, the proliferation of immortal corporations enabled civil society to gain a special legal (and cultural) solidity beyond that provided to human beings. In relation to Kantorowicz’s theological temporalities, Ritu Birla’s erudite book on the evolution of legal property in India36 shows that British colonial authorities sometimes drew on existing Indian theological and legal techniques even as they imposed English law on the Indian economy, as when a Hindu immortal deity was recognized by British law as a legal owner of property—ironically, to get around the rule against perpetuities. Though charter-style European-type incorporation became the legal norm for businesses over time, ancient legal temporalities continue to exist, often in hybrid form.37 The proliferation of corporations in the early and mid-nineteenth century—from universities through for-profit enterprises to mixed entities combining private property and jurisdiction—greatly helped to legitimize the rising liberal state, as shown for the US in William Novak’s comprehensive survey.38 That the angel-like temporality of the corporation was key not only to the rise of capitalism, but also to the constitution of civil society and thus indirectly of the state, is an important and specifically legal fact thus far ignored by the capacious literature on ‘the bourgeois public sphere’, which usually proceeds as if this public sphere was/is merely voluntary and transactional.39 The legal make-up of corporations may be dismissed by public international lawyers as irrelevant; but I would argue that scholars who mainly work with states and alliances of states could appreciate the importance of the symbiotic relationship, in liberal democracies, of corporations (non-profit as well as for profit) and the state. Apart from the question of the possible corporate roots of modern states, republican as well as monarchical, the legal creation of corporations, I would argue, has a recursive effect on state sovereignty—one that becomes invisible if legal fields that may have to be kept separate in legal practice are also kept separate in scholarly work.40 The immortality of the corporation is an everyday ‘real’ fact, rendered technical in such routine practices as board members electing their replacements without having to 35 One could use Ciepley (n. 30) to reframe the point made here to argue that the state–civil society corporation distinction is, in a sense, a distinction between two kinds of corporation; but for present purposes it is possible to bracket that question and treat ‘the state’ in a more conventional fashion. 36 Ritu Birla, Stages of Capital: Law, Culture, and Market Governance in Late Colonial India (Durham: Duke University Press, 2016), esp. ch. 2. 37 Mariana Valverde, Law’s Dream of a Common Knowledge (Princeton: Princeton University Press, 2003). 38 William J. Novak, ‘The American Law of Association: The Legal-Political Construction of Civil Society’, Studies in American Political Development 15(2) (2001): 163–88. 39 Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Cambridge: The MIT Press, 1991). 40 See Riles (n. 4).

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Socio-Legal Theory, Legal Scholarship, and Jurisdiction 173 re-incorporate. By contrast, other temporalities essential to the workings of law are widely recognized as legal fictions or as necessary corollaries to important legal fictions. One such temporality is the instantaneity of the contract. Even if they are unfamiliar with the vast literatures on social trust and the ‘pre-contractual basis of contract’, practicing lawyers surely understand that instantaneity is a legal conceit—but a necessary one. Just as contractual proceedings counterfactually assume that the parties to a contract have existed in monad-like isolation from each other and from the larger world prior to formulating their wishes,41 so too legal actors have to act as if the contract itself were born whole at an extension-less point in time. This powerful legal fiction has given rise to Byzantine debates about postboxes and mail service: given the notorious pathdependency of most legal fields, it is far easier to add pre-Copernican circles upon circles to a legal fiction than to throw it out. In any case, legal actors who might agree to dispense with a traditional legal fiction, temporal or otherwise, would simply have to find other perhaps equally implausible substitutes. If law is a kind of mapping, the ‘fictionalization’ of reality that is integral to mapping is also integral to law: as Lon Fuller pointed out long ago, there are very good reasons why law specifically throws up all manner of ‘legal fictions’.42 Some socio-legal scholars, mainly anthropologists, have documented the workings of the various temporalities that are visible in and often integral to legal proceedings.43 The debates about whether a foetus becomes a person at the moment of conception, at the beginning of the third trimester, or at birth, arise from the legal fact that liberal law must visualize persons as if it were physiologically impossible for two persons to exist in the same space even for a short time. The need to fix a single temporal starting point for and sharply draw spatial boundaries around legal personhood that grounds abortion law is not a unique ideological project, or not only that—it is internally connected to liberal legality’s previously mentioned necessary spatiotemporal assumptions, such as those embedded in the doctrine of party autonomy. The strong path-dependence of legal forms of reasoning, on temporality as on other topics, makes it difficult to challenge one legal ‘fiction’ without threatening the solidity of a whole series of conceptual legal edifices. On occasion, temporality can become invisible by being held constant, for example in jurisdictional disputes between parties that utilize the same legal temporality but make different claims about the ‘when’. In such cases, only an outside, non-legal reading of the situation can bring to light the peculiar temporal assumptions embedded in the legal 41 Fleur Johns, ‘Performing Party Autonomy’, Law and Contemporary Problems 71(3) (2008): 243–71. 42 Lon Fuller’s three essays were published together; Lon Fuller, ‘Legal Fictions’, Illinois Law Review 25 (1930): 363–99, 513–46, 877–910. For a recent persuasive argument to the effect that lawyers and legal scholars ought not to be afraid of legal fictions, see Maksymilian del Mar, ‘Legal Fictions and Legal Change’, International Journal of Law in Context 9(4) (2013): 442–65. 43 Carol J. Greenhouse, A Moment’s Notice: Time Politics Across Cultures (Ithaca: Cornell University Press, 1996); Grabham (n. 7); Justin Richland, ‘Sovereign Time, Storied Moments: The Temporalities of Law, Tradition, and Ethnography in Hopi Tribal Court’, Political and Legal Anthropology Review 31(1) (2008): 8–27; Keebet von Benda-Beckmann, ‘Trust and the Temporalities of Law’, The Journal of Legal Pluralism and Unofficial Law 46(1) (2014): 1–17.

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174 mariana valverde proceedings. This could be illustrated through the famous 1927 Lotus case.44 As is well known, lawyers representing France and Turkey presented competing claims to the Permanent Court of International Justice in regard to Turkey’s prosecution of a French ship pilot whose alleged negligence had caused a collision with a Turkish ship in which several Turkish sailors died.45 Legal arguments proceeded as if the collision between two ships—both of which must have continued to move for some time after the crash, even if the Turkish ship’s sinking took less time than that of the Titanic—could be and should be treated as an event with a single, fixed time and place. Awkwardly trying to fit temporally extended processes into a single point in timespace is of course everyday work for law. Criminal law doctrines in particular establish the time and place of the crime using different criteria (usually, either where and when the physical crime took place or where and when the effects were primarily felt); but, whatever the precise criteria, criminal law in general needs to affix each crime to a singular spacetime, just as contract law insists on determining the single instant at which a contract comes into legal being. The point here is not to criticize law for failing to accurately reflect the spatio-temporality of real life. Critical legal studies often use straw-man arguments that make it seem that there is something unusual and illegitimate about the persistence of legal fictions. It is important for critical socio-legal scholarship to appreciate that physics, for example, has to be taught as if subatomic particles were in fact solid and round, while social science, for its part, has to proceed by constructing the very fictions (‘society’, ‘community’, ‘class’, ‘individuality’, etc.) that it then claims to discover and study. For the same kind of reasons, the work of law relies on certain fictions that have to be treated as pre-existing law even though it is a truth hidden in plain sight that it is law that creates the fictions it needs. And contrary to what some critical legal scholars suggest, law is epistemologically ahead of sociology (more postmodern, one could say) insofar as every lawyer knows that a legal fiction is neither a purposeful lie nor an ignorant incorrect truth claim, but rather an artefact that pragmatically allows law to bracket ‘reality’ for the sake of a convenient solution—whereas sociological fictions are often presented, and not just in the Durkheimian tradition, in the guise of real objects.46 The point I wish to make here is therefore not to rehearse the tired complaint that law tries to stuff reality into pre-made boxes (which is true enough, but applies to human thought in general, as Friedrich Nietzsche pointed out long ago), but simply to underline some features of law’s conventions for visualizing reality that may have become ‘naturalized’, particularly among those long habituated to using legal formats and legal forms of reasoning. The legal construction of spacetime is closely related to the topic of the next section— that is, the materiality of law: indeed, one and the same legal manoeuvre can at the same 44 SS Lotus (France v Turkey) [1927] PCIJ Series A, No. 10. 45 For an interesting account of what was at stake for Turkey in this litigation, see Umut Özsu, ‘De-Territorializing and Re-Territorializing Lotus: Sovereignty and Systemacity as Dialectical NationBuilding in Early Republican Turkey’, Leiden Journal of International Law 22(1) (2009): 29–49. 46 An influential argument along these lines is Latour (n. 8).

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Socio-Legal Theory, Legal Scholarship, and Jurisdiction 175 time impose particular spatio-temporalities and suppress the physicality that many recent socio-legal scholars have argued is integral rather than incidental or irrelevant to law.47

IV. The Materiality of Legal Actors and Processes One of the most important trends in critical social science today seeks to document how the specific materiality of various entities that are important to systems, including legal systems, affects how power and knowledge relations develop. One of the best-known authors in this line is Bruno Latour, who for many years empirically studied scientific laboratories but then turned his attention to legal arenas, specifically France’s Conseil d’Etat.48 Taking an anthropological standpoint, Latour begins his book by reflecting on the political theory communicated by the architectural details of the building in which the Conseil sits, as depicted in an invitation he received. As the book unfolds, Latour shows that the material details of the Conseil—how the pigeonholes in which the members get their assignments are built and configured; how papers of diverse provenance are put together with paper clips to make up a ‘case’—make a difference to how law proceeds. Famously, or notoriously, his discussion of the Conseil purposively avoids asking legal questions—even omitting to tell the reader, in many instances, how a case whose oral presentation he witnessed and recounts turned out. But he concludes that legal scholarship might learn something new by pondering the effects of the details of the material arrangements that law requires—a call that has been taken up by some socio-legal scholars.49 In relation to international law and jurisdiction, recent work by political theorist William Walters, for example, illustrates what one can learn about migration and migration law by paying attention to the materiality of means of transport: travelling by plane before making a refugee claim is different from travelling by leaky boat.50 What Walters calls ‘viapolitics’—that is, the effects of the means used to travel, especially across borders—has obvious implications for international law as well as immigration law, especially since some countries including Australia have created laws that distinguish, legally, between migrants arriving by informal-economy boats and those arriving by cruise ship or plane.

47 And not only law but also bureaucracy; cf. Patrick Joyce, The State of Freedom: A Social History of the British State since 1800 (Cambridge: Cambridge University Press, 2013). 48 Bruno Latour, The Making of Law: An Ethnography of the Conseil d’Etat (New York: John Wiley & Sons, 2013). 49 Kyle McGee (ed.), Latour and the Passage of Law (Edinburgh: Edinburgh University Press, 2015). 50 William Walters, ‘Migration, Vehicles, and Politics: Three Thesis on Viapolitics’, European Journal of Social Theory 18(4) (2015): 469–88.

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176 mariana valverde Investigations by Latour and others into the material conditions (and effects) of legal work and legal visualizations converge in many respects, methodologically, with recent anthropological work on the materiality of files and documents. Annelise Riles’s anthology, Documents: Artifacts of Modern Knowledge,51 is one example with particular relevance to international legal scholars. Her own contribution to this anthology uses empirical research on the process by which women’s rights documents were produced for UN purposes to think about the ‘agency’, so to speak, of the humble parenthesis.52 She shows that the UN practice of using brackets to indicate that a particular phrase does not have the agreement of all the relevant States Parties is much more than a typographical practice: it is a key political technology enabling the United Nations to claim that achievements are taking place even as recalcitrant states refuse to go along with a majority view. Using the example of the Vatican’s objections to most gender equity terminology, Riles shows that the parenthesis marks are absolutely key in allowing the United Nations to both promote gender equity and disavow it at the same time— ‘bracketing gender’, as she puts it.53 Historians of state power, especially those working on the British Empire, have also undertaken much interesting work on the materiality of the colonial state, work that has clear relevance to international law. These studies make visible and document the back-stage work that is necessary for legislatures, executives, and the judiciary to then make or perform law on the front of the stage—although most scholars in this area have not yet gone on to analyse specific legal consequences that flow from the particular ways in which the state’s work was materially organized. A good example of this literature is Patrick Joyce’s innovative empirical study of the nineteenth-century British state.54 This contains a brilliant chapter entitled ‘Filing the Raj’,55 showing how exactly the vast river of correspondence from India was handled in London, with what political consequences, as well as a chapter on the materiality of the mid-nineteenth-century Post Office. In Joyce’s view, the material organization of the Post Office network contributed greatly not only to the success of the modern British state, but also to the creation of a relatively unified nation. Scholars working on such issues as international environmental agreements could perhaps apply the methodology used by Joyce and others to inquire whether the details of the ‘infra-legal’ techniques required, say, to establish carbon levels in the atmosphere, have effects on the strictly legal level. Work on the materiality of the state and of law has been largely conducted by nonlawyers. And of course, legal scholars will be unlikely to focus exclusively on materiality, as these studies tend to do, since more strictly legal considerations have to be included. However, including materiality within the scope of interdisciplinary legal analysis, and perhaps even in strictly legal analysis, could be fruitful. 51 Annelise Riles (ed.), Documents: Artifacts of Modern Knowledge (Ann Arbor: University of Michigan Press, 2006). 52 Annelise Riles (ed.), ‘Deadlines’, in Annelise Riles (ed.), Documents: Artifacts of Modern Knowledge (Ann Arbor: University of Michigan Press, 2006), 71–94. 53 Ibid., 75. 54 Joyce (n. 47). 55 Ibid., 144–61.

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Socio-Legal Theory, Legal Scholarship, and Jurisdiction 177 One situation in which this type of analysis has already proven very useful concerns the use of pre-printed forms requiring only that blanks be filled in, artefacts that not only save time, but (as is also the case for contract boilerplate) tend to standardize legal as well as administrative work. Anthropologists of documents have studied how these forms are put together, how much space is given for answers to questions, what issues are subject only to check boxes rather than treated as requiring an original narrative, and how the forms, once filled in, travel from one office to another to be authorized or examined or audited or turned into evidence—or merely filed away.56 The forms in question are regarded by ordinary citizens as well as by lawyers as ‘infra-legal’.57 But since the pre-made forms structure the way in which events and people are depicted for legal purposes, hence pre-organizing both evidence and potential future legal arguments, the details of these taken-for-granted papers (or electronic documents) do matter. A great example of the fruitfulness of attending to the material details of documents is noted Cambridge anthropologist Marilyn Strathern’s analysis of the format of university mission statements, particularly the routine use of bullet points rather than footnotes or other scholarly formats.58 Bullet points organize a document, physically and intellectually, in ways that fit with and potentially amplify the logic of corporate life—in contrast to the epistemological and political effects of the footnote-laden formats preferred by scholars. A statement that is part of a bullet-point list is not read as requiring any particular authority. Thus, the humble bullet-point list has a subtle political effect that is all the more powerful by virtue of going unnoticed. Given current predictions about legal work being increasingly performed in an ‘infra-legal’ manner, by computer data-entry clerks or even by computer programs themselves, paying attention to how routine paperwork is actually put together, formatted, filled out, signed, sent on, and so on could perhaps be very fruitful for legal analysis. The materiality of law takes many forms. From different perspectives, Renisa Mawani and William Walters have both argued that the specific materiality of oceans, seas, ships, and other means of travel has long been occluded by the land-based prejudices of state and state-centric international law.59 Exploring law’s material underpinnings could shed new light on how the game of jurisdiction is played. This issue has come into visibility in Indigenous title litigation in both Australia and Canada, where courts have had to decide whether evidence in the form of songs or in the form of objects such as wampum belts is admissible, and if so, whether it has the same weight as evidence appearing in conventional formats. These deliberations appear as anthropologically informed exceptions to the rule of not noticing materiality or not giving it legal 56 Matthew Hull, Government of Paper: The Materiality of Bureaucracy in Urban Pakistan (Berkeley: University of California Press, 2012). 57 To use Johns’s term in a different manner than she does. See Johns (n. 1). 58 Marilyn Strathern, ‘Bullet-Proofing: A Tale from the United Kingdom’, in Annelise Riles (ed.), Documents: Artifacts of Modern Knowledge (Ann Arbor: University of Michigan Press, 2006), 181–205. 59 Renisa Mawani, ‘Law, Settler Colonialism and the “Forgotten Space” of Maritime Worlds’, Annual Review of Law and Social Science 12(1) (2016): 107–31; Walters (n. 50).

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178 mariana valverde importance; but they could also be seen as the leading edge of a larger epistemological challenge posed to legal scholarship. Similarly, it would be interesting to see what international lawyers could discover by paying more attention to the physical and typographical characteristics of law’s paperwork and to the specific material means used to produce documents, file them, have them travel through various legal circuits, and so on. The legal implications of the specific way in which legal files ‘ripen’, as Latour puts it, have not been much explored; but one good example (whose findings only apply to ordinary criminal cases, unfortunately) is Irene Oorschot’s analysis of the materiality and the specific movements, across file folders and desks and offices, of the civilian ‘criminal case file’.60

V. Does Law Have Moods? Narratives, Genres, and Affect Law and literature scholars as well as legal anthropologists have long argued that it is useful to pay attention to the specific ways in which legal venues and processes incite the production of particular narratives by ordinary witnesses, people contemplating being witnesses, and lawyers. The countless stories that are produced every day for legal purposes—in affidavits, in discussions in lawyers’ offices, in oral testimony by eyewitnesses and expert witnesses, in oral presentations by counsel, in cross-examination, etc.—are expected to follow certain forms, at least in their finished form. One cannot just tell one’s unrehearsed story to ‘have one’s day in court’, as Susan Silbey and Patricia Ewick documented in an influential book documenting how ordinary Americans talk about resorting to or avoiding legal proceedings.61 The conventions that have to be followed if a narrative is to be successful in a specific legal venue include affect and passion. In the Lotus proceedings, the Turkish Minister of Justice did mention the dead Turkish sailors, but, judging from Özsu’s careful research, the argument as a whole seems to have been closer to a chronicle of national honour and national pride than to the kind of tragic tale of loss of innocent life that is standard fare in ordinary criminal negligence cases.62 That a different type of legal proceeding (say against the insurers of one or both of the ships) would have required a different narrative with a different affect is at one level an obvious point—but a point that may be obvious can nevertheless be used to generate broader, more theoretical insights into what I would want to call the ‘genres’ of law.63 60 Irene van Oorschot and Willem Schinkel, ‘The Legal File as Border Object: On Self-Reference and Other-Reference in Criminal Law’, Journal of Law and Society 42(4) (2015): 499–527; see also Alain Pottage, ‘The Materiality of What?’, Journal of Law and Society 39(1) (2012): 167–83. 61 Patricia Ewick and Susan Silbey, The Common Place of Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998). 62 Özsu (n. 45), 29–49. 63 Valverde (n. 9).

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Socio-Legal Theory, Legal Scholarship, and Jurisdiction 179 Russian literary scholar Mikhail Bakhtin suggested decades ago that literary genres are identifiable both by particular spatio-temporalities and also by characteristic moods.64 Since even people unfamiliar with Niklas Luhmann would likely agree that law is among other things a system of communication, legal scholars could find it useful to attend to the fact that communications, and perhaps especially formal written communications, are never unique, but always follow patterns characteristic of a particular genre. Of course, some creativity is possible: a fiction writer can produce a ‘hybrid’ novel that is a mix of science fiction and romance, and so too a legal actor (say, a judge writing a decision) can resort to more than one legal genre within a single text, perhaps even a single paragraph. But the genres themselves are fairly impervious to writers’ experiments, just as the basic forms of legal reasoning change only very slowly, and are relatively unaffected by inventive legal manoeuvres. One of the points that makes Bakhtin’s analysis of genre useful for legal purposes is that he makes it clear that genre distinctions are features of a culture and thus not subject to author-initiated instant change; but neither are they static and unchangeable. Over time, new genres and new subgenres can and do emerge. So too, legal arenas can witness the rise of partially new genres that enable actors to generate relatively new types of law. The mid-twentieth century witnessed the rise of ‘human rights’ at the national and at the international levels, for instance, and some decades later, international lawyers and transnational non-governmental organizations (NGOs) collaborated in creating ‘humanitarian intervention’, a somewhat new genre of legal narrative featuring not the usual sovereign states but rather ‘failed’ states, portrayed as containing not citizens but rather anonymous suffering masses.65 Literary scholarship including Bakhtin’s would emphasize that once a choice of genre is made, either explicitly and with much thought or somewhat instinctually, a great deal of path-dependency follows. This is certainly applicable to the field of international law (and to the work of NGOs). And the effects go both ways: once arguments are produced using certain narrative conventions, then, a particular type of law, a particular jurisdiction with its distinct ‘how’ of governance, follows. While a single jurisdiction could easily entertain arguments made using different genres, there are affinities and preferences between narrative forms and legal proceedings, as well as some definite incompatibilities (just as a television writer can try to mix genres for the sake of novelty, but only up to the point of aesthetic indigestion). For example, the universal jurisdiction claimed in 1998 by the Spanish judge who initiated the prosecution of former Chilean dictator Augusto Pinochet in an English court was supported by genres that had been developed over many years by human rights NGOs as well as by legal scholars and legal practitioners. In that situation, the legal-culturalpolitical genre in which ‘crimes against humanity’ figure largely proved incompatible with the old doctrine of sovereign immunity—sovereign immunity of course being itself a 64 Michael Bakhtin, The Dialogic Imagination: Four Essays (Austin: University of Texas Press: 2008). 65 Didier Fassin, Humanitarian Reason: A Moral History of the Present (Berkeley: University of California Press, 2012).

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180 mariana valverde major feature of the all-important genre of sovereignty narratives, which as Foucault reminds us are indeed narratives even when presented in the form of abstract theoret ical tomes.66 Bakhtin’s influential work suggests that each genre tends to favour a particular affect, along with certain aesthetic conventions. Foucault’s own reflections on the difference between the heroic tales of blood and honour favoured by the aristocratic chroniclers and the rationalist tone adopted by the major European thinkers of sovereignty67 would confirm this. As Foucault points out, Hobbes’s effort to suppress the fact of the Norman Conquest and write as if English sovereignty had a purely rational and transactional origin deploys a particular affect too—the affect of abstract geometric reasoning.68 In my own work, I have explored the relation between legal doctrine and narrative affect in one mundane legal context by showing that the affect associated with the mythical happy nuclear family infuses North American planning law’s obsession with the singlefamily detached form of housing. As I have shown elsewhere, the deep emotions associated with the happy nuclear family turn out to have very distinct legal effects, including the legal marginalization of the sort of non-family housing represented by rooming houses and seniors’ residences.69 In many areas of law, therefore, one can see that there is a dynamic relationship between genres widely available in the culture (such as those of the philanthropic narrative, or those of the happy nuclear family) and particular legal developments. And legal genres, like literary genres, can be distinguished by distinctive aesthetic and emotional features.

VI. Conclusion To call for more frequent and deeper dialogues between social theory and legal scholarship does not require a social theorist such as the present writer to offer up a ready-made theory that ought to be ‘applied’ in legal contexts. Inspired by existing work on the ‘technicalities’ and ‘infra-legal’ details that legal scholars themselves often ignore or take for granted, the call made in this chapter is as much a call to help social science and social theory appreciate and draw upon the rich resources that legal processes and texts provide as it is an invitation to legal scholars to explore new literatures and resources. If this dialogue continues, it is unlikely that ‘jurisdiction in international law’ would remain a distinct topic; one of the most useful tasks that social theorists can perform for legal scholarship is precisely to break up categories that have evolved for purposes of legal practice but 66 Michel Foucault, ‘Society Must Be Defended’: Lectures at the Collège de France, 1975–1976 (London: Penguin Books, 2003). 67 By contrast to Jean Bodin’s and Hobbes’s rationalist and scholarly rhetoric, the aristocratic writers of tales of blood and honour who dominated political discourse in the late feudal period showed ‘an almost erotic passion for historical knowledge . . . relentless denunciations [and] the articulation of history around something resembling a plot’. Ibid., 135. 68 Ibid., 98. 69 Valverde (n. 9), 19–21.

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Socio-Legal Theory, Legal Scholarship, and Jurisdiction 181 that may get in the way of intellectual innovation. Thus, the fact that this chapter has meandered over many different areas of law is the effect of a deliberate choice of standpoint or scale on the author’s part—a standpoint that lies outside both legal practice and the legal academy, but has been taken up with a fair bit of humility towards those who have devoted themselves to documenting and explaining what many would dismiss as ‘legal detail’, but which has to be appreciated by anyone claiming to theorize anything concerned with law.

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Chapter 9

Cr itica l A pproach e s to J u r isdiction a n d I n ter nationa l L aw Shaun McVeigh*

I. Introduction

183

II. Critical Approaches (Protocols)

183

III. Claims of Authority

185

IV. Engagements: Conduct of Jurisdiction

192

III.1. Critical and International Authority III.2. Thinking with Jurisdiction IV.1. Universality of Jurisdiction IV.2. Technical Forms and Means

V. Jurisdictions and Encounters

V.1. Rival Authorities V.2. Plural Authorities and Encounters

VI. Conclusion

186 189 192 197

199

200 202

204

* This chapter draws on the work of research collaborations with Shaunnagh Dorsett, Ann Genovese, and Peter Rush. The author would like to thank Diamond Ashiagbor, Ann Genovese, and Sundhya Pahuja for reading and discussing this chapter.

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Critical Approaches to Jurisdiction 183

I. Introduction One thematic concern of this Handbook is the availability of juristic and jurisdictional accounts of international ordering that reckon with the exercise of authority, apart from sovereign territorial states. This chapter takes up this concern in the work of critical jurists as they address and deploy accounts of jurisdiction and international law.1 For Renaissance jurists in Europe, the widest concern of jurisdictio—or the power to speak the law, and to decide what law is—related to establishing the authority of a supreme power charged with the obligation of securing justice and equity. The term ‘jurisdictional’, it has been noted, could qualify the activity of the jurisprudent (discussing the rules of civil life) and the jurist (elaborating and explaining the content of rules); as well as that of the judge (the authority to decide) and the legislator (exercising the authority to create new law).2 This chapter considers some of the ways in which critical jurists, as jurisprudents, work within, and take responsibility for, jurisdictional thought and practice as they track relations between forms of authority and the conduct of lawful relations.3 The consideration of ‘critical approaches’ to jurisdictional thought and practice undertaken here focuses on the prudential and historical aspects of creating and maintaining relations of law, more so than normative or social concerns. It reflects on how critical jurisprudents train themselves and their readers to understand the concerns and practices of jurisdiction as an aspect of the conduct and responsibility of the office of jurist or jurisprudent. While this chapter is not presented directly in terms of a Handbook entry on ‘how to approach jurisdiction critically’, there is a (strong) element of showing ‘how critical approaches by scholars have been made’.

II. Critical Approaches (Protocols) The contemporary scholarly discipline of international law is itself sometimes treated as being a ‘critical’ discipline. It has been pitched against the ambitions and failures of empires, states, and corporations.4 As Anne Orford has noted, international law has 1 I use ‘critical jurist’ and ‘critical jurisprudent’ as a general shorthand. It includes the jurist writing in a critical mode as well as a self-identified ‘critical jurist’ who treats their office as distinct from that of the jurist. I sometimes use the term jurisprudent to draw attention to prudence and conduct rather than legal science. 2 Francesco Maiolo, Medieval Sovereignty: Marcilius of Padua and Bartolous of Saxoferrato (Delft: Eburon Academic Publishers, 2009), 141–2; Bradin Cormac, A Power to Do Justice: English Literature, and the Rise of Common Law, 1509–1625 (Chicago University Press, 2007), 32–8. 3 The specific focus of this chapter is influenced by the knowledge that there are many critical approaches to jurisdiction already presented in this Handbook. 4 Ian Hunter, ‘About the Dialectical Historiography of International Law’, Global Intellectual History 1(1) (2016):1–32, 3; Martti Koskenniemi, ‘A History of International Law Histories’, in Bardo Fassbender and Anne Peters (eds.), The Oxford Handbook of the History of International Law (Oxford University Press, 2012).

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184 shaun mcveigh been treated ‘as a vehicle for wide-ranging public projects designed to reorder the world, from dividing up Africa at the end of the nineteenth century, to ending the scourge of war, managing decolonisation, humanising warfare and liberalising trade in the twentieth century’.5 ‘Critical approaches’ can also be treated with more specificity, and related to traditions of thought, politics, and ethics. This chapter takes up three themes that relate critical approaches to the contemporary concerns of jurisdiction in the international domain. The first theme is the concern with the authority and authorization of lawful relations; the second, the conduct of lawful relations; and, the third, the training in conduct of the office recommended in critical approaches. This last aspect provides the narrative thread of this chapter: critical approaches offer a training in conduct of the office of the jurist and jurisprudent as well as the citizen. A concern with how to describe and elaborate contests and problems of authority— of politics and law—has long been an important aspect of critical approaches to inter national law.6 Two contests of authority are taken up. One considers questions of authority to be concerned with civil authority and its transcendence (in the work of Martti Koskenniemi and Ian Hunter). The other addresses authority explicitly through accounts of jurisdiction (through the work of Anne Orford and Peter Goodrich). Whilst treated as specific critical engagements with jurisdiction, these writings also rehearse and reform established repertoires of jurisdictional address within legal thought. To draw out the sense of an engagement of particular modes (or styles or forms) of jurisdictional practice, the conduct of lawful relations is treated in the second substantial engagement of this chapter as a form of prudence, or matter of judgment. This does not, or at least should not, distract attention from jurisdiction as being part of ideational and institutional arrangements or expressions of authority. It does, however, point to the ways in which jurisdictional practices are engaged in creating or crafting relations of law.7 Finally, the contests of authority and the modes of authorizing of lawful relations addressed here are shaped by a concern with the ways in which questions of conduct of life get raised and addressed as scholarly concerns of jurisdiction.8 A critical approach to jurisdiction is a training in conduct towards and within a jurisdiction or plurality of 5 Anne Orford, ‘Constituting Order’, in James Crawford and Martti Koskenniemi (eds.), The Cambridge Companion to International Law (Cambridge University Press, 2012), 272. 6 James Crawford, ‘Sovereignty as a Legal Value’, in James Crawford and Martti Koskenniemi (eds.), The Cambridge Companion to International Law (Cambridge University Press, 2012), ch. 5. 7 Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Abingdon: Routledge-Cavendish, 2012), ch. 4. This chapter also draws upon Mariana Valverde’s Chronotopes of Law: Jurisdiction, Scale and Governance (London: Routledge, 2015). The approach taken here shares much with that work. 8 E.g. Edward Mussawir, Jurisdiction in Deleuze: The Expression and Representation of Law (Abingdon: Routledge-Cavendish: 2012); Piyel Haldar, Law, Orientalism and Postcolonialism: The Jurisdiction of the Lotus Eaters (Abingdon: Routledge-Cavendish, 2008); Peter Goodrich, ‘Visive Powers: Colours, Trees and Genres of Jurisdiction’, Law and Humanities 2(2) (2008): 213–31; Robert Cover, ‘The Supreme Court, 1982 Term: Foreword: Nomos and Narrative’, Faculty Scholarship Series, 2705 (1983), http://digitalcommons. law.yale.edu/fss_papers/2705; Maria Drakopolou, ‘Of the Founding of Law’s Jurisdiction and the Politics of Sexual Difference: The Case of Roman Law’, in Shaun McVeigh (ed.), Jurisprudence of Jurisdiction (Abingdon: Routledge-Cavendish, 2007), 33–60; Robert Cover, ‘The Folktales of Justice: Tales of Jurisdiction’, in Matha Minow, Mark Ryan, and Austin Sarat (eds.), Narrative, Violence and the Law: The Essays of Robert Cover (Ann Arbor: University of Michigan Press, 1993), 173–202.

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Critical Approaches to Jurisdiction 185 jurisdictions. The critic, even when not advising the sovereign, still directs attention towards office, law, and world. Accordingly, a central concern of this chapter is the way in which the jurist or jurisprudence addresses jurisdiction from within their office. The protocols of description and argument in this chapter take up a limited range of concerns to draw out the ways groups of critics have addressed what might be viewed as the critical concerns of jurisdiction in the domain of international law. It notes the ways in which the topics of jurisdiction are given shape and considers how the relations of law are afforded through jurisdictional practices and prudence. The accounts of critical approaches presented here are in deliberately muted tones. In this idiom the concerns with the legitimacy of authority and the justness of action are engaged in the middle of events where the form, style, and content of jurisdictional ordering are a matter of deliberation about how to live well with law. In a different register the theatrical, institutional, and social performance or practice of jurisdiction would also be addressed since this is also an aspect of the conduct of office and the exercise of a jurisdiction.9 The sources and resources discussed in this chapter draw from Anglophone traditions of international law. This is an acknowledged limit of affiliation of legal tradition, time, and place.

III. Claims of Authority Phrased in the language of international law, the concerns of authority to declare, deliberate, or act in the name of the law are often addressed, today, in terms of the principled coordination of state-centred forms of public administration and the conflict of interests. For Bruno Simma and Andreas Th. Müller jurisdiction ‘mirrors the structure of inter national legal order and its guiding principles’.10 The critical engagements addressed in this section contest the ease with which authority, principle and the concerns of jurisdiction are aligned. The first engagement is shaped within loosely idealist traditions of legal scholarship that tie critical engagements with law (and jurisdiction) to the conditions of possibility for legal knowledge and to forms of training designed to transcend or transform the conditions of everyday legal life.11 In these accounts, jurisdiction is treated as an expression of authority of modern international law. The second engagement relates to a rather more diffuse body of critical scholarship. This scholarship addresses authority and law through jurisdictional engagements that complicate and displace state-centred thinking about international law, and jurisdiction.12 9 Marett Leiboff, ‘Theatricalizing Law’, Law and Literature 30(2) (2018): 351–67. 10 Bruno Simma and Andreas Th. Müller, ‘Exercise and the Limits of Jurisdiction’, in James Crawford and Martti Koskenniemi (eds.), The Cambridge Companion to International Law (Cambridge University Press, 2012), 134, 156. 11 Hunter (n. 4). 12 There are many different ways in which authority and law can be brought into relation. See Shaunnagh Dorsett and Shaun McVeigh, ‘Jurisprudences of Jurisdiction: Matters of Public Authority’, Griffith Law Review 23(4) (2014): 569–88.

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III.1. Critical and International Authority It is more or less a truism of international law that the concerns of jurisdiction and the allocation of the authority to state the law are shaped first by the sovereign territorial state, and the rival claims of international authority. One influential point of departure for critical approaches to jurisdiction and international law has been to articulate the movement ‘beyond’ the state. Another approach has been to question the ways in which moving ‘beyond’ the state has tended to leave both state and law untouched by critical thought. For example, the writings of David Kennedy and Martti Koskenniemi and, more generally, the critical legal programmes of Harvard and Helsinki Universities, have emphasized how the pragmatics and rhetoric of international law draw attention to the role of jurists and critical jurists in the formation of discourses and legal practices capable of characterization as belonging to international law.13 Whilst both are concerned with the authority of the international jurist to speak, for Kennedy the central focus has been on government, international rule, and the jurist as advisor to the prince; for Koskenniemi, the central concern has been international legal argument and the juristic analysis of the form of law. Both contest the coherence of legal thought, the certainty of outcome of practice, and the idea that the effects of action conducted in the name of law can be redeemed by the promise of legality and justice. The focus of this section is Koskenniemi’s engagement with the authority of law and of the jurist. His critical and historical analyses of international legal thought allow for a distinct engagement with the normative claims of international jurisdiction. By way of contrast, and in order to show something of what is at issue in Koskenniemi’s critical approach, I draw on a brief polemical intervention by the Australian intellectual historian Ian Hunter who affirms the importance of a state-centred account of authority, civil jurisprudence, and history writing to the practice of international law.14 Martti Koskenniemi’s studies of international law have done much to open the central concerns of international jurists to critical and historical engagement. In From Apology to Utopia, Koskenniemi analysed the discourse of international law and legal order in terms of law as a language that carries a normative project.15 The central theme of the book is driven by a sense of the contest between an apology for the bureaucratic forms of 13 David Kennedy, A World of Struggle: How Power, Law, and Expertise Shape Global Political Economy (Princeton University Press, 2016). 14 Hunter (n. 4); Ian Hunter ‘The Figure of Man and the Territorialisation of Justice in ‘Enlightenment’ Natural Law: Puffendorf and Vattel’, Intellectual History Review 23(3) (2013): 289–307; Ian Hunter, ‘On the Critical History of the Law of Nature and Nations’, in Shaunnagh Dorsett and Ian Hunter (eds.), Law and Politics in British Colonial Thought: Transpositions of Empire (Basingstoke: Palgrave Macmillan, 2010); Ian Hunter, ‘Kant and Vattel in Context: Cosmopolitan Philosophy and Diplomatic Casuistry’, History of European Ideas 39(4) (2013): 477–502; Ian Hunter, ‘Kant’s Regional Cosmopolitanism’ Journal of the History of International Law 12(2) (2010): 165–18. 15 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, 2nd edn (Cambridge University Press, 2005); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press, 2001).

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Critical Approaches to Jurisdiction 187 international practice and the challenge of the cosmopolitan promise of international justice. Looked at structurally, Koskenniemi argued, the repertoires of language make available a grammar of law and a rhetoric of legal argument that divides between the formality of legal argument and the open-endedness of political dispute.16 For Koskenniemi, the juristic defence of the state and its criticism has been nourished by the guild of jurists and is specific to a time and place.17 The ‘heroic’ period between the 1870s and 1960s created the juristic projects, forms, histories, and ethos of contemporary international law. For Koskenniemi, it is this sensibility, and the authority it exercises, that has been lost in ‘managerialism’ and ‘technicism’.18 In Koskenniemi’s account, jurisdiction is addressed both in the idioms of realist politics and utopian juristic promise. On the one hand the claims of jurisdiction are part of the contests of state, corporation, and international institutions. On the other hand the promise of international law is shaped by the authority and jurisdiction of the critical jurist in their work to establish a cosmopolitan ethic. The role of the international jurist may no longer be heroic but it is still important to maintain the oscillating promise of international law.19 The historian Ian Hunter presents one way of approaching the contest of Koskenniemi’s history and dialectics of international law. He does so by noting how Koskenniemi’s work takes part in a long polemic about the status of public authority and the role of the jurist. Koskenniemi’s approach to international law, Hunter argues, joins a culture of legal argument that emerged from a distinct regional inheritance of Enlightenment jurisprudence. It inherits, albeit in a critical manner, the traditions of thought of German idealism and university metaphysics, especially, through the work of Immanuel Kant. What Hunter finds in Koskenniemi’s historical and critical writing is an account of an international authority that is subject to the claims of the ‘philosophical jurist’ and their cosmopolitan ethic. For Koskenniemi, international law—in contrast to the Law of Nations—was named as such in the nineteenth century only when historians and jurists developed a reflective understanding of the autonomy of international law as a system of norms. For Hunter, Koskenniemi’s dialectical history is, in many ways, a startling denial of the historical record of juristic thought. There were, after all, many erudite histories and digests of laws, and accounts of diplomatic practice and jurisprudence written before the 1850s that contributed to the formation of the civil state system in Europe, and to the elaboration of a public law of nations.20 Koskenniemi’s writing of a history of international law as if it originated in the nineteenth century, affords, however, a temporal 16 Koskenniemi, From Apology to Utopia (n. 15), 563–5. 17 Koskenniemi, The Gentle Civilizer of Nations (n. 15), 6–10. 18 Ibid., 4–5, 422. 19 E.g. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 27 June 1986. This case offers an exemplary account of the contest of jurisdiction as one of authority and of the promise of the justice (to come). See Robert Melly, Jean Manas, Crystal Nix, ‘Note: Constructing the State Extra-Territoriality: Jurisdictional Discourse, the National Interest, and Transnational Norms’, Harvard Law Review 103 (1990): 1273–305. 20 Hunter (n. 4), 7.

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188 shaun mcveigh and jurisdictional contrast. The distinction lies between the histories and diplomatic practices of the jurists of civil states, and those of the cosmopolitan critical international lawyers. The distinction also provides the form for Koskenniemi’s criticism of the ‘managerialism’ and ‘technicism’ of modern international legal thought and practice.21 By making themselves the central figure in a dialectical mediation of cosmopolitan legal consciousness, the critical jurist also makes themselves the central figure of the crisis of international law. Hunter’s analysis is important in a number of ways. First, it offers a historical analysis of critical accounts of international law. Second, it insists on establishing the conditions of rivalry of accounts of international law and jurisdiction within both scholarly and institutional practice. Hunter, for example, links Koskenniemi’s history writing and jurisprudence to the traditions of university metaphysics of the sixteenth century and notes the ways in which they fuelled sectarian dispute then, as they do now.22 By way of polemical contrast, Hunter’s criticisms carry with them a range of commitments to civil authority and civil order as well as to the writing of empirical history. The polemical force of Hunter’s history writing (and commitment to civil jurisprudence) rests on the continuing authority and efficacy of de-sacralized accounts of civil authority for maintaining civil peace and security. His style of non-dialectical history writing and jurisprudence also recommends a conduct of civil responsibility for the jurist (rather than ‘managerialism’).23 In the contest of authority and jurisdiction presented by Koskenniemi and Hunter, it is worth noting the competing accounts of the authority of law are related directly to the understanding of the responsibilities of the office of the jurist and jurisprudent. In asserting the ideational, cosmopolitan, character of international law, Koskenniemi also describes the institutional practice of international law as ‘managerial’ and the work of civil jurists as a demoralized apology for state action. Hunter’s histories ‘regionalize’ Koskenniemi’s approach as belonging to a particular protestant German critical tradition that has been exported round the world by critical jurists (and sectarian moralists). Far from being merely technical, an ethic of office of civil historians and jurists pays special attention to the limits of authority, their own and that of the civil state.24 For Hunter the ethic of office of the international jurist and the training in jurisdictional thinking and practice is a continuation of the training in conduct of the civil jurist. It is given shape by a clear-sighted sense of the forms of life and law that an institution devoted to civil peace might cultivate.

21 Ibid., 8–9. 22 Ian Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (Cambridge University Press, 2001). 23 See e.g. Costas Douzinas, Human Rights and Empire (Abingdon: Routledge-Cavendish, 2007). 24 The polemic and counter-arguments are contested on many fronts. Hunter’s own account is also regional and its transmission has also been exported through the extension of empire and the concern with civil authority. See Ian Hunter, ‘Global Justice and Regional Metaphyiscs: On the Critical History of the Law of Nature and Nations’, in Ian Hunter and Shaunnagh Dorsett (eds.), Law and Politics in British Colonial Thought: Transpositions of Empire (Basingstoke: Palgrave Macmillan, 2010), 11–29.

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Critical Approaches to Jurisdiction 189 For all that Hunter and Koskenniemi contest the authority and history of international ordering, what remains relatively untouched in these accounts is an account of jurisdiction as a varied institutional reception, expression, and arrangement of an authority to judge the conduct of lawful relations (howsoever understood).

III.2. Thinking with Jurisdiction Another group of jurists taking a critical approach to jurisdiction do so by addressing it through the authorization of forms of authority.25 The work of Anne Orford and Peter Goodrich returns to older forms or styles of legal authority to draw out some of the elements of international institutional arrangements and practice. Orford returns to the jurisdictional forms of the Holy Roman Empire, and Peter Goodrich to that of the Catholic Church.26 These two jurisdictions imagine and arrange forms of lawful relations appropriate to the obligations of a citizen of a world not bounded by territory.27 In mediaeval Europe, the universal spiritual jurisdiction of the pope was matched by the universal temporal jurisdiction of the Holy Roman Empire. Anne Orford has noted the ways in which the contemporary organization and practice of the institutions of the United Nations can be understood in terms of a jurisdiction of empire.28 Peter Goodrich has shaped his account of juristic conscience of international law. Both have presented accounts of the office and jurisdiction that revive the humanistic and political calling of the jurist.29 As an institutional question, the contemporary authority of international law depends on how institutions such as the United Nations are to be understood. The central institutional tasks of the United Nations are the creation and administration of an international domain by ‘taking measures’, ‘solving international problems’, ‘encouraging respect’, and as acting as a ‘centre for harmonization’.30 At one level the juridical authority of the United Nations has simply been determined as a matter of the assertion of their authority through treaties, across a range of executive, administrative, and welfare concerns. However, the status of the United Nations as the representative organ of international law has rarely been treated in a straightforward way. For Anne Orford, the analysis of the development of a distinct form of international authority, and accompanying jurisdictional form, has been the central motif of modern international executive rule. This has 25 A focal point of much of the modern understanding of public authority within jurisprudence is the concern with the forms of prestige, supremacy, and subordination expressed in law and government. See Dorsett and McVeigh (n. 12). 26 By contrast Koskenniemi might be said to draw on forms of cosmopolitan citizenship drawn from Roman jurisprudence. 27 Walter Ullman, Law and Jurisdiction in the Middle Ages (Aldershot: Ashgate/Variorum, 1988). 28 Anne Orford, ‘Jurisdiction without Territory: From the Holy Roman Empire to the Responsibility to Protect’, Michigan Journal of International Law 30(3) (2009): 981–1015. 29 Peter Goodrich, ‘The International Signs of Law’, in Anne Orford and Florian Hoffman (eds.), The Oxford Handbook of the Theory of International Law (Oxford University Press, 2016). 30 Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Art. 1. http://www.unwebsite.com/ charter.

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190 shaun mcveigh been most clearly seen in the way in which a jurisdiction has developed around the doctrine of the responsibility to protect (vulnerable people in failed states).31 While the responsibility to protect doctrine can be considered a response to an ethical imperative, this misses the sense that the development of the doctrine has shaped a form of executive rule. This rule, exercised through the United Nations, is not modelled on the jurisdictional forms of the sovereign territorial state, but on the plural forms of authority of the seventeenth-century Holy Roman Empire. Its plural sources of authority and disposition of jurisdictions creates a complex form of institutional practice shaped around status. The responsibility to protect doctrine also brings into focus the contest of authority in maintaining forms of civil security. In this account jurisdiction is understood as a distinct form of authority (or power) shaped both by plural relations of status and a specific institutional practice and effect. Peter Goodrich’s account of jurisdiction follows a different lineage of authority. It draws jurisdictional questions back into the arguments of medieval and Renaissance jurists and the ways in which the forms of laws of nations were developed from the spiritual and temporal jurisdiction of the Church.32 It is the method developed by the medieval papacy that provides the first European orderings and division of the world. This method found particular expression and form in the papal ‘Bulls of Donation’ culminating in the Bull Inter Caetera of 1493 and the Treaty of Tordesillas 1494.33 For Goodrich, the question of jurisdiction is tied both to the enunciation of authority and to its representation. This is marked in the linking of faith and possession through the visible forms of law that ‘signal the imaginary occupation, and the imperial possession of spaces and of persons, of land and sea’.34 More formally, Goodrich argues that it is the contemporary forms of conscience expressed through international law that continue to provide the structure of international authority. In this respect the jurisdictions of international law are given shape by a spiritual jurisdiction of conscience attuned to joining things ‘divine and human’.35 The signs and emblems that communicate the order of laws, nations, and peoples give the material form of such a jurisdiction.36 Orford and Goodrich’s accounts are significant, I think, for the ways in which their critical approaches to international law are explicitly developed through their understanding of jurisdiction as a form of authority, a mode of authorization, and a power to judge, to rule, to do justice and so forth. For Goodrich, jurisdiction is to be understood in terms of the historical structure of Western legal thought and the precedence of the jurisdiction of conscience. The loss of the spiritual jurisdiction is a loss of a form of law and legal thought. It is also, for jurists and others, the loss of a form of legal conscience. 31 Anne Orford, International Authority and the Responsibility to Protect (Cambridge University Press, 2011), 148–50. 32 Goodrich (n. 8). 33 Orford (n. 31), 146. 34 Goodrich (n. 29), 380. 35 Gregor Noll, ‘Theorizing Jurisdiction’, in Anne Orford and Florian Hoffmann (eds.), The Oxford Handbook of the Theory of International Law (Oxford University Press, 2015). 36 Peter Goodrich, ‘Devising Law: On the Philosophy of Legal Emblems’, in Anne Wagner and Richard K. Sherwin (eds.), Law, Culture and Visual Studies (New York: Springer, 2014); Paul Carter, ‘Tropical Knowledge: Archipelago Consciousness and the Governance of Excess’, etropic 12(2) (2013): 79–95.

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Critical Approaches to Jurisdiction 191 For Orford, the sense of jurisdictional arrangement tracks both the history of executive authority and the critical engagement with the responsibility of jurisdictional forms. It also opens the way for considering the continuing importance of Imperial legal forms for contemporary international law.37 In her account, Orford points to the ways in which the insistence of attending to civil authority is itself a practice of responsibility.38 Both present accounts of authority and jurisdiction that stand apart from the civil authority of state and diplomatic practice. Like Koskenniemi and Hunter, the accounts of institutional existence presented by Goodrich and Orford are framed through reference to forms of critical community, both within the university and external to it. In the critical approaches addressed here, the link between the authority of the jurist and critic is closely aligned with the authority and form of law. Where Koskenniemi draws law into a contested domain of conscience (philosophical and juridical), Orford holds international authority to political power and its critique, and Goodrich returns law to the authority of jurisdictional form and the resources of humanist criticism.39 For Anne Orford, questions of method and discipline are directly linked to the forms of responsibility that might be assumed for the future transformation of law (whether this is understood in terms of the emergence of distinct forms of international authority, or the political economy of international finance and trade.)40 For Peter Goodrich, the elaboration of the two jurisdictions of conscience and conduct in European idioms of law is in part a project in maintaining the conscience and life of law. However, for Goodrich, it is a training that notes the ways in which such a conscience is subject to the vagaries of unconscious desire. His emphasis on maintaining the visible and representative forms of law is directed towards the care of office and the technical means of the conduct of office. The humanist jurisconsult and diplomat, as well the contemporary critic, must develop an art of office. All the critics addressed in this chapter share a sense that training in the historical significance and forms of the jurisdictional ordering of international law provides authority for the critic to judge as jurisprudent. Historiography provides an important part of training in office, and of understanding the authority of jurisdiction. In turning to the conduct of jurisdiction in the next section of this chapter, attention is turned first to the prudence and crafting of relations of law.

37 Anthony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2004); Luis Eslava and Sundhya Pahuja, ‘Between Resistance and Reform: TWAIL and the Universality of International Law’, Trade, Law and Development 3(1) (2011): 103–30. 38 Orford (n. 31), 200–1. 39 A contrasting analytical approach can be found in Nicole Roughan, Authorities Conflicts, Cooperation, and Transnational Legal Theory (Oxford University Press, 2013). 40 Anne Orford, ‘Embodying Internationalism: The Making of International Lawyers’, Australian Yearbook of International Law 19 (1998): 1–34; Anne Orford, ‘Food Security, Free Trade, and the Battle for State’, Journal of International Law and International Relations 11(2) (2015): 1–67.

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IV. Engagements: Conduct of Jurisdiction For many, the critical engagement of jurisdictional practice follows two lines of evaluation. One follows the law of jurisdiction and its normative evaluation (considering, for example, addressing the legitimacy and fairness of a jurisdiction); the other establishes forms of contextual understanding of legal institutions and their facts.41 The joining and separating of these two concerns is addressed through social and legal theory. In this section the concern with jurisdictional thinking and practice is not so much contextual as prudential, since it addresses the institutional arrangement of judgment.42 As in the previous section, attention is given to jurisdictional arrangements that are formulated apart from the sovereign territorial state. The engagements here take up the form of a universal jurisdiction and its relation to ‘crimes against humanity’, and the difficulties of articulating the practice of jurisdiction in the middle of events. Both link the prudence of jurisdictional arrangements to the forms of responsibility they afford or make available.

IV.1. Universality of Jurisdiction The crafting and criticism of forms of universal jurisdiction exercised by domestic courts has become a distinct enterprise. The ways in which the assumption and conduct of jurisdiction is given value occur through the elaboration of jurisdictional concerns. The focal point here is Hannah Arendt’s formulation of jurisdiction in her report on Government of Israel v Adolph Eichmann (1962) in Eichmann in Jerusalem and the subsequent discussion of the jurisdictional ordering of ‘crimes against humanity’.43 The assertion of forms of universal jurisdiction has a long-established legal history and quite varied ways of crafting jurisdictional arrangements, both as an expression of natural law and as a particular aspect of the administration of justice. Domestic courts have claimed universality of jurisdiction in a range of matters as a question of both

41 Nicole Roughan, ‘From Authority to Authorities: Bridging the Social/Normative Divide’, in Roger Cotterrell and Maksymilian Del Mar (eds.), Authority in Transnational Legal Theory (Cheltenham: Edward Elgar Publishing, 2016). 42 Dorsett and McVeigh (n. 7), ch. 2. 43 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Harmondsworth: Penguin Books, 1963, repr. 2006); Government of Israel v Adolph Eichmann, 36 IRL 5, [8] [Dist. Court Jerusalem], aff ’d 36 ILR 277, repr. (1962) 56 American Journal of International Law 805. For discussions of jurisdiction in Eichmman see Hans Bade, ‘The Eichmann Trial: Some Legal Aspects’, Duke Law Journal (1961): 400–20; Itamar Mann, ‘The Dual Foundation of Universal Jurisdiction: Towards a Jurisprudence for the Court of Critique’, Transnational Legal Theory 1(4) (2010): 485–521.

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Critical Approaches to Jurisdiction 193 domestic interest, and the comity of nations.44 The trial of Adolf Eichmann has proven exemplary in this matter. Eichmann was charged under domestic law in the state of Israel for crimes committed as a Nazi in Germany, the court also asserted the authority to judge and the right to punish. In a terminology taken from the War Crimes Commission, this was so because the crimes ‘afflicted the whole of mankind’, ‘shocked the conscience of nations’, and were ‘grave offences against the law of nations itself ’. The movement from mankind to the obligations of nation states is met by the state accepting that ‘the authority and jurisdiction to try crimes under international law are universal’.45 In the epilogue to her account of the trial, Hannah Arendt argued that (territorial) jurisdiction should be considered as a ‘space between individuals in a group whose members are bound to, and at the same time separated and protected from, each other by all kinds of relationships, based on a common language, religion, a common history, customs, and laws’.46 For Arendt, emphasis was to be placed on the relationship between people rather than geography as such. Jurisdiction in this formulation is presented as the juridical power of sharing the world with others.47 Another way of holding on to the jurisdictional quality of the trial of Eichmann, and Arendt’s understanding of it, is to consider how the assertion of jurisdiction is shaped by an event. (In this case an event for which there was no adequate legal form in 1961.)48 Imagined as a concern with jurisdictional arrangement, Arendt’s account can be seen as addressing juridical and political arrangements between ‘humanity’ (which was not, for Arendt, a political-juridical community), and the common projects of international community which are certainly less determined than those of peoples, nations, and states.49 For Arendt this joined an ethical concern with the political wrong of a ‘crime against humanity’ as an offence against ‘human status’ and human diversity to the acknowledgement of responsibility for sharing the earth. Another way of characterizing the jurisdictional arrangement of the Eichmann trial then might be to show the ways in which the taking of a jurisdiction authorized and represented the conscience of a community and, for Arendt, of law itself.50 In his account of Arendt’s understanding of the trial of Eichmann, the moral philosopher Raimond Gaita 44 Kevin Heller, ‘What Is an International Crime? (A Revisionist History)’, Harvard International Law Journal 58(2) (2017): 353–420, 354–5. Robert Cover, ‘The Folktales of Justice: Tales of Jurisdiction’, Faculty Scholarship Series, Paper 2706 (1985), http://digitalcommons.law.yale.edu/fss_papers/2706. 45 Mann (n. 43), 493. 46 Arendt (n. 43), 262–3. David Luban, ‘Hannah Arendt as a Theorist of International Criminal Law’, International Criminal Law Review 11(3) (2011): 621–41. Luban also notes Arendt’s concern that concentrating on the victim of a crime will destroy the public character of crime by treating the crimes against humanity as private or civil wrongs (624–6). 47 Hannah Arendt, Between Past and Future (New York: Viking Press, 1961), 221–2; Pheng Cheah, What Is a World?: On Postcolonial Literature as World Literature (Durham: Duke University Press, 2016), 130–6. 48 Arendt (n. 43), 253 et seq. 49 Orford (n. 31), 210–12; Paul Hirst, Space and Power: Politics, War and Architecture (Cambridge: Polity, 2006), 26–30. 50 Lawrence Douglas, The Memory of Judgment: Making Law and history in the Trials of the Holocaust (New Haven: Yale University Press, 2001), ch. 4.

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194 shaun mcveigh has argued that conscience remains in the domain of law and politics. In the context of crimes against humanity and genocide, Gaita has argued, however, that the kind of universality that a universal jurisdiction addresses is not a concern with commitment to principles of abstract morality expressed in the language of the moral law or human rights. Rather, it is a concern with common humanity engaged through ethically inflected forms of natural or public language, and the art and law made possible by it.51 In most circumstances, the sense of wrong expressed in the wrong of a crime and humanity, or the insistence on dignity expressed in human rights, is far from abstract. It engages ethical judgment in the middle of life even as questions of dignity register concerns of political status and the willingness or unwillingness to take responsibility for the work of justice. In Eichmann, for Arendt, it is the justice of the court directed towards the guilt or innocence of the accused that is her first concern.52 Gaita also notes the r egister of understanding of the sacred and of compassion in understanding the wrong of genocide.53 Arendt was more concerned than Gaita to draw politics and law apart from passion and art.54 In this, Arendt argues for a restricted (or directed) ethical engagement of jurisdiction, law, and justice as a matter of public law. Arendt’s account of jurisdiction does the ethical work, here juridical and political, of acknowledging and judging a crime against humanity. This is to be done in the presence of a wrongdoer who is part of a (political) community.55 For Gaita, the sense of common humanity (and common sense) that is required of a judge taking responsibility for a wrong—making a wrong justiciable—is carried by both reason and sentiment, as well as style and content. Cognition, in the realm of meaning, requires both reason and emotion. (This might be felt in the way that a judge might show remorse or shame in the failure of law to acknowledge a wrong or to address an injustice.56) In the accounts presented by Arendt and Gaita, the acknowledgement of jurisdiction carries with it an account of the authority to judge, and the prudence of judgment.57 51 Raimond Gaita, ‘The Universality of International Criminal Law and the Idea of Common Humanity’, in Raimond Gaita and Gerry Simpson (eds.), Who’s Afraid of International Law? (Melbourne: Monash University Press, 2017), 187–9. 52 For a more critical account of Arendt see Leiboff (n. 9), 2–9, locating the concern with humanity as an aspect of the theatricality and affect of the institutional life of law. Lyndsey Stonebridge notes the ways in which many of the writers who covered the trial were struck by the lack of affect in the legal proceedings: Lyndsey Stonebridge, The Judicial Imagination: Writing after Nuremberg (Edinburgh University Press, 2011). 53 Raimond Gaita, A Common Humanity: Thinking about Love Truth and Justice (Melbourne: Text Publishing, 1999), 23–7, 140–2, 152. 54 See Johan van der Walt, ‘Law and the Space of Appearance in Arendt’s Thought’, in Marco Goldoni and Christopher McCorkindale (eds.), Hannah Arendt and the Law (Oxford: Hart Publishers, 2012), 63–88. 55 Raimond Gaita, ‘Prelude: Morality, Law, Politics’, in Raimond Gaita and Gerry Simpson (eds.), Who’s Afraid of International Law? (Melbourne: Monash University Press, 2017), xxvi–xxvii. 56 Gaita (n. 51), 182–3. 57 The authors discussed in this chapter address the world from within a civil (and more or less liberal) vision of the political life. It is a vision of politics that makes achieving civil peace more important than the conduct of war.

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Critical Approaches to Jurisdiction 195 It is also, for Arendt, the expression of a political community, and for Gaita the expression of the serious engagement with what it means to recognize a common humanity and a wrong. When Gaita notes that dignity is addressed in the realm of meaning nourished by serious reflection and understanding of remorse and wrongdoing, he also notes that it is necessary to find the appropriate legal form to express wrongdoing and justice—here those elements of a universal law as an expression of common humanity. Genocide, argues Gaita, marks a distinct form of wrong from that of mass murder. This conceptual work is the work of the jurist as legal philosopher. The same can be said for the work of elaborating the forms of jurisdictional arrangement. These are certainly not the only formulations of a jurisprudence of jurisdiction. Marett Leiboff, for example, takes up Arendt’s reluctance to address the passion of law and the importance of witness as part of a reluctance to acknowledge the theatricality of law (and public life). For Leiboff, to acknowledge the theatricality of law and of institutional life is to acknowledge that the institutional life of law addresses the lived body as well as the legal person. Being human is not simply, or only, a reflection of, or participation in, a common language.58 Where Arendt and Gaita address the court and international legal order as an institution that creates forms of responsibility and is amenable to a distinct judgment of conduct, David Luban and Devika Hovell inflect Arendt’s account of jurisdiction in a different way. They address jurisdiction in terms of legitimacy and the interests and purpose of legal institutions, and worry whether the disenchanted claims of authority made in the name of international law and its institutions can carry the weight of such responsibility.59 Hovell, for example, points to the ways in which contemporary forms of universal jurisdiction have tended to be presented as an aspect of a personal jurisdiction protecting human rights, rather than a jurisdiction of events or conscience. What is at issue is the way in which a concern with the exercise of a jurisdiction (always exercised on ‘someone’s behalf ’) is linked to individuals as rights-holders framed within a transnational right to a remedy.60 One object of her argument is to acknowledge a crit ical distancing between forms of authority and the justification of a jurisdiction in the name of the state, the comity of nations, or international community.61 David Luban locates universal jurisdiction in the claim that all individual persons have an interest in repressing crimes against humanity. He calls this a claim of ‘vigilante jurisdiction’ and formulates the interest, as does Arendt, in the political domain as a sort of self-evident natural jurisdiction.62 58 See also Peter Goodrich, ‘Specters of Law: Why the History of the Legal Spectacle Has Not Been Written’, University of California Irvine Law Review 1(3) (2011): 773–812. 59 David Luban, ‘A Theory of Crimes against Humanity’, Yale Journal of International Law 29 (2004): 85–167, 91; Devik Hovell, ‘The Authority of Universal Jurisdiction’, European Journal of International Law 29(2) (2018): 427–56, 436. 60 Hovell (n. 59), 443–6. 61 Dorsett and McVeigh (n. 7), ch. 5, addressing the difficulties and ambivalence of establishing forms of personal jurisdiction in relation to the sovereign territorial state. 62 Luban (n. 59), 91, 138.

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196 shaun mcveigh Another object of attention is the authority and ethic of responsibility of public institutions. For Hovell the question of jurisdiction is a question of political authority and socio-legal efficacy. In an era of an established international criminal law and of established diasporas, Devika Hovell and, differently, Frederic Mégret, point to the ways in which universal jurisdictions are structured around the relation between a cosmopolitan duty of hospitality and a personal jurisdiction shaped by the human rights of those who are attached to a new state or territory.63 Universal jurisdiction here is part of transnational cosmopolitanism as much as it might be concerned with migration and citizenship. For both, a universal jurisdiction is exercised by a state on behalf of those individuals and communities who are ‘victims of serious international crimes’.64 The authors addressed in this section all struggle with the ethical formulation of the acknowledgement of forms of common humanity in the domain of law. They also struggle to set the tone and register of jurisdictional engagement. Arendt closely aligned the form of jurisdiction to political reason. Luban and Hovell, as contemporary jurists, situate their arguments about jurisdiction within the institutional arrangements of international criminal law. In doing so they draw apart the ethical concern with the wrong of genocide from the ethical concern with securing legal justice. As Luban’s assertion of the self-evidence of the claim of jurisdiction attests, this does not remove the link, but it does hold the concern with universal wrongs apart from a concern with the legal form of a universal jurisdiction. It also presents a different account of the office of jurisprudent that is charged with the worldly concern of securing the means of practical redress through jurisdictional form. Where Gaita and, differently, Leiboff, assign the exercise of a jurisdiction to reason, emotion, and theatre, Hovell and Luban present their arguments through a distinctly mundane practice of jurisdiction addressed through legal process. For Gaita the ethical responsibility of responding to the wrongs of genocide should be met by a vocation or calling beyond office. Hovell, and differently Luban, place weight on institutional arrangements and the interest of those representing victims. What has been emphasized here, in addressing Arendt and her juristic readers, is an understanding of jurisdiction as shaped by events and conscience. Holding jurisdiction to prudence has drawn out some of the work of jurisdiction in addressing the conduct of office.

63 Frédéric Mégret, ‘The “Elephant in the Room” in Debates about Universal Jurisdiction: Diasporas, Duties of Hospitality, and the Constitution of the Political’, Transnational Legal Theory 6(1) (2015): 89–116. Mégret adopts a form of argument developed in Koskenniemi’s Between Apology and Utopia. Ian Hunter’s account of cosmopolitanism and the confessional form it is given by Kant can be found in ‘Kant and Vattel in Context: Cosmopolitan Philosophy and Diplomatic Casuistry’, History of European Ideas 39( 4) (2013): 477–502. 64 Hovell (n. 59), 456; Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84(1) (2014): 187–239.

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Critical Approaches to Jurisdiction 197

IV.2. Technical Forms and Means Moving on from relations between authority and conduct, this section addresses forms of jurisdictional conduct that are carried by technical means. This engagement will be brief, and point to the long-standing ways in which political and economic practice (and contest) is embedded and distributed through jurisdictional means. The examples here emphasize situations where a jurisdictional practice is visible but not necessarily tethered to an explicit jurisdictional form or arrangement. The formulation of jurisdictional arrangements I address here is drawn from the work of Annelise Riles and Fleur Johns. They link legal technique and ‘knowledge practices’ in the construction of relations of law in the middle of events. Here the issue is not so much one of asserting or choosing a jurisdiction but of making one, or acting as if there is, or is not, one.65 Both Johns and Riles frame their accounts of jurisdiction through the authorization of relations rather than through an arrangement of the public institutions of an international order. Their concerns (financial markets, securities, and data detection) can be viewed as private, despite their public consequence. However, what interests Johns and Riles is not so much the blurring of public and private ordering but the ways in which the jurisdictional arrangements of both public and private legal ordering can be treated as a matter of technique.66 In her account of how global financial markets have been understood by legal ‘technicians’, Riles has noted the ways in which public and private officials shared similar techniques of creating and engaging relations.67 In turning these observations of practice (often by people who did not have professional legal office) to techniques of jurisdiction, Riles can be seen as offering a prudential account of the value of regulation, and the technical means of creating forms of authority. Jurisdictional arrangements become a practice of authorization and their relation to the jurisdictional ordering of public institutional authority a matter of negotiation. Johns takes the pragmatic and prudential (or, more narrowly, tactical) character of legal engagement in a slightly different direction. In Non-Legality in International Law, she analyses the ways in which the production of limits to legality and non-legality, from within and without practices of law, have given rise to a variety of different margins and ‘borders’ to relations of law.68 Like Riles, Johns argues that stepping aside from the concerns of the legitimacy and justification of jurisdictional ordering allows attention to be turned from disputes about forum and choice, to a consideration of the relations that are created and sustained through law—for example, forms of corporate rule. By attending to the ways in which commercial and financial transactions are engaged through law and lawyers, Johns notes that a separate domain of law cannot easily be 65 Fleur Johns, Non-Legality and International Law (Cambridge University Press, 2013), 20–3, 109–14; Annelise Riles, Collateral Knowledge Legal Reasoning in the Global Financial Markets (Chicago University Press, 2011), 9–11. 66 H. Charlesworth and C. Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press, 2000), 31. 67 Riles (n. 65), 223–5, 240–2. 68 Johns (n. 65), 111.

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198 shaun mcveigh maintained in the detail of the description of transactions.69 The same point can be made about the description of jurisdictional concerns, once jurisdiction is addressed as a practice. For example, the sense that a jurisdiction could be established to actualize a lex mercatoria—a customary private law of commerce—has a long history amongst jurists and ‘traders’.70 For some such a jurisdiction holds out the promise of freeing ‘traders’ from the technicalities of state law. By contrast, in their broadly pragmatic account of the practices of lawyers, Johns and Riles suggest it is through such practices that a jurisdiction is created and held in place. In sum, jurisdictional authority is established through the conduct of lawyers and traders in their offices and roles, rather than a clear demarcation between public and private regulatory order.71 While Johns and Riles emphasize the creative aspect of such relations, they are far from uncritical of what is created. Riles’s analysis of risk, for example, shows the ways in which legal, political, and economic thought have tended not to pay close attention to the networks of relations that have given order to ‘the financial system’. In this respect she might be said to address the irresponsibility of jurisdictional techniques.72 Johns’s engagement with jurisdiction is more dialectical in the sense that her descriptive analysis first emphasizes the escape from legal form of entities shaped by technical practices, for example forms of rule generated through big data, and then reimagines new sensibilities of ordering.73 Aside from establishing a way of describing jurisdictional practice through its technical forms, there are two distinct benefits from considering how jurisdictions are crafted in the middle of events. The first benefit is that it becomes possible to treat concerns of jurisdiction amongst a range of other practices of authority and authorization, within and without the institutional forms of international law. For Riles, such engagements constantly push against the sorts of worlds that can be made through law. For Johns, the formulation of different relations to law and legality is the work of political contest as much as it is a matter of construction and disruption of local tactics. The second benefit is more methodological: paying attention to the details of the conduct of lawful relations, and forms of legality and non-legality, is itself work that is conducted with an awareness of office and its obligations. Johns’s argument, for example, is in part directed against those who ignore the material practice of lawyers in claiming access to a political and legal understanding of international law. Compared to the accounts of judges and lawyers in the first part of this section, Johns and Riles present a thin account of responsibility. However, as with other critics, the obligations of the jurist and jurisprudent remain considerable. For Johns the task of the critic is to renew forms of legality by contesting the distribution of relations of law and their effect.74 Describing and attending to the ways in 69 Luis Eslava, Local Space, Global Life: The Everyday Operation of International Law and Development (Cambridge University Press, 2015). 70 See Dorsett and McVeigh (n. 7), 42–4, 48–9. 71 Johns (n. 65), 185–214. 72 Annelise Riles, ‘From Comparison to Collaboration: Experiments with a New Scholarly and Political Form’, Law and Contemporary Legal Problems 78 (2015): 147–83. 73 Fleur Johns, ‘Data, Detection, and the Redistribution of the Sensible in International Law’, American Society of International Law 111(1) (2017): 57–103. 74 This radicalizes and relocates the perspectival disruption of authority presented by Koskenniemi. Where Koskenniemi addresses advisors to the prince, Johns addresses the political-legal activist (scholar).

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Critical Approaches to Jurisdiction 199 which technical forms create, and create limits to, relations of law is part of an aesthetic and political education that trains the jurisprudent to understand the arrangements of the sensory phenomena of international law. It is practiced as a part of a recovery of the work of the non-expert in the formation of relations of law. It also participates in the disruption of forms of authority beyond rule.75 Riles notes both the pragmatic importance of legal technique, and the potential for the ways in which attending to technicalities as a style or mode of engaging conduct, can be developed as an ethos for the conduct of lives lived in public.76 Neither Johns nor Riles holds these concerns closely to forms of a jurisdiction of public international law; both, however, assume that the international domain is to be inhabited jurisdictionally. To conclude this section, and to draw out the sense of the creation of relations in the middle of events, a number of critical engagements with authority and action have been recast as a concern of jurisdictional practice. In one register, this has made visible the different sorts of jurisdictional engagement addressed in the universal jurisdiction imagined in the Eichmann Trial and its commentaries. In doing so emphasis has been given to the different ways in which jurisdictional arrangements afford forms of j uridical and ethical engagement. In a different register, jurisdiction has been treated as a practice of the office of the jurisprudent. It has been concerned with the prudential understanding of relations of law. As with any redescription there has also been an element of critical commentary. In this section, emphasis has not been placed on the resolution of contests of jurisdiction or the legitimation of jurisdictional practices. Rather, attention has been given to the ways in which jurisdictional arrangements afford or make available practices of responsibility. Compared to the jurists addressed in the first section, the critics discussed in this section draw on and link jurisdiction and office in many different ways. By concentrating on the ways in which questions of jurisdiction are engaged in the middle of events, the concerns of conduct have been viewed as creating jurisdictional forms and practices of responsibility. The question of whether such forms align with older traditions of jurisdictional thinking has not been addressed.

V. Jurisdictions and Encounters The final part of this chapter addresses the ‘internationality’ and ‘transnationality’ of international law and the ways in which rival and parallel international orders are addressed as concerns of jurisdiction. The topic of the meeting and conflict of laws is 75 Fleur Johns, ‘The Temporal Rivalries of Human Rights’, 23 Indiana Journal of global Legal Studies 23(1) (2016): 39–60. 76 Karen Knop, Ralf Michaels, and Annelise Riles, ‘From Multiculturalism to Technique: Feminism, Culture and the Conflict of Laws Style’, Stanford Law Review 64 (2012): 589–656, 632–6, 652–4.

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200 shaun mcveigh normally addressed through forms of legal pluralism and private international law.77 Here a narrower focus is maintained by addressing the ways in which the elaboration of a jurisdiction can be treated as an ‘outward facing’ activity addressing forms of plural authority in the encounter, or meeting of laws. The contest of jurisdictions of international institutions can also be understood in relation to two different frames of reference.78 To arrange contemporary international law into a shape that engages another law requires consideration of both belonging to a legal order and encountering other legal orders. In one account both aspects can be understood through the formal and ceremonial arrangements of treaties, conventions, and contracts between nations. Such legal forms establish the status and create the protocols of lawful engagement that require acknowledgement of law and of jurisdiction. The first encounter addressed here is the conflict within the international legal order established in America and Europe in the nineteenth and twentieth centuries. The second encounter is between international legal orders. The concern here is with the understanding of the meeting of jurisdictions. The status of national and international law in relation to states and corporations can be viewed and contested through the lens of one international law and international order. However, the commitments of jurisdictional thinking cross different paths when the engagements are between nations that are not accorded status as sovereign territorial states or when more than the law of nations is taken into consideration.

V.1. Rival Authorities The encounter noted here is a contest within what is understood as a single international order and law. It follows a number of critical accounts that link the representation of substantive political and economic contests within the international domain to an understanding of jurisdiction. One central critical contest within the international order has been over the various ways in which the promise of the equality of sovereign territorial states and the possibility of maintaining peace and universal rights are understood as the basis of international order. Critics have pointed out that—far from being incidental—political and material inequality are embedded in the forms of international ordering.79 The post-1945 independence movements, for example, were in many ways presented as a triumph against empire. However, the newly decolonized nations joined an international domain that created and contested state formation, trade, and finance through the forms of authority afforded by jurisdictional practice.80 The post-1945 77 Onuma Yasuaki, International Law in a Transcivilizational World (Cambridge University Press, 2017); Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law 1800–1850 (Cambridge: Harvard University Press, 2016). 78 Gaita (n. 53), 87–106. 79 Benton and Ford (n. 77). 80 Shaun McVeigh and Sundhya Pahuja, ‘Rival Jurisdictions: The Promise and Loss of Sovereignty’, in Charles Barbour and George Pavlich (eds.), After Sovereignty: On the Question of Political Beginnings (London: Routledge, 2009). Such formulations can also be folded into the range of critical analyses that

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Critical Approaches to Jurisdiction 201 contest for the control of natural resources and the control of corporate investment has been addressed in a number of different ways. In one reading the issues can be addressed as ones of legitimacy and appropriate exercise of authority by transnational institutions.81 Within the ambit of the United Nations, such concerns could be viewed as a matter of distributive justice, or at least economic management. However, as Sundhya Pahuja and Anna Saunders argue, it was the battles over jurisdiction and legal form within the UN Commission on Transnational Corporations that shaped questions of the exercise of public authority in relation the conduct of corporations and paved the way for investor–state arbitration.82 In this respect characterizing such contests as jurisdictional makes visible the contest of claims of authority of states identifying as Third World, to determine their relation to corporations and capital against an international jurisdiction shaped by the USA and its friends. It also can be figured as a substantial engagement of jurisdiction concerning who has the authority to regulate private property.83 Whether or not such engagements are considered jurisdictional or simply political will depend both on the ways in which the relationship between authority and jurisdiction is understood. Concern with the politics of public authority has been at the centre of the critical analysis undertaken by TWAIL scholars (Third World Approaches to International Law). TWAIL scholarship has been noted for the ways it addresses the political, cultural, and economic contests that give form to the international domain.84 As an engagement of rival authority TWAIL scholars have also sought to establish legal forms appropriate to acknowledge the lawful relations of the ‘Global South’.85 The accounts of jurisdiction that are addressed through this contest of authority are diverse. However, as one example, it can be noted that the re-engagement of the inheritance of the Bandung Conference (1955) and the Non-Aligned movement can also be understood as the assertion and acknowledgement of a contest of authority. In this contest, the training offered by critics set the contest of authority within the liberal order of international law in its protection of capital accumulation, state authority, and assertion of (natural) rights in the contest of world ordering. See e.g. Tarik Kochi, ‘Dreams and Nightmare of Liberal International Law: Capitalist Accumulation, Natural Rights and State Hegemony’, Law and Critique 28(1) (2017): 23–41. 81 Maureen Tehan et al., The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+ (Cambridge University Press, 2017). 82 Sundhya Pahuja, ‘Laws of Encounter: A Jurisdictional Approach to International Law’, London Review of International Law 1 (2013): 63–98; Sundhya Pahuja and Anna Saunders, ‘Rival Worlds and the Place of the Corporation in International Law’, in Jochen von Bernstorr and Philip Dann (eds.), Decolonisation and the Battle for International Law (Oxford University Press, 2018); Sundhya Pahuja and Cait Storr, ‘Rethinking Iran and International Law: The Anglo-Iranian Oil Company Case Revisited’, in James Crawford et al. (eds.), The International Legal Order: Current Needs and Possible Responses—Essays in Honour of Djamchid Momtas (Koninklijke: Brill Nv, 2017), 53–74. 83 Pahuja and Saunders (n. 82). 84 Eslava and Pahuja (n. 37). 85 C. F. Black, Shaun McVeigh, and Richard Johnstone, ‘Of the South’, Griffith Law Review 16 (2007): 299–309; B. S. Chimni, ‘Third World Approaches to International Law: A Manifesto’, International Community Law Review 8 (2006): 3–27; Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press, 2003).

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202 shaun mcveigh is both one of disenchantment with the promise of international law and the assertion of a new jurisdiction.86 The training in disenchantment opens jurisdictional questions of authority to the concerns of justice, inequality, and material deprivation; the training in the assertion of jurisdiction recalls the histories of the contests of rival international laws to establish new forms of engagement.87

V.2. Plural Authorities and Encounters The contest of jurisdictions of international institutions can also be understood in a different frame of reference.88 To arrange contemporary international law into a shape that meets another law requires consideration of both the form and substance of the conduct of the meeting of laws, and of ways of belonging to law. At one level the formal and ceremonial arrangements of the meeting of laws are figured in the treaties, conventions, and contracts between nations. Such legal forms create protocols of lawful engagement that require acknowledgement of law and of jurisdiction. The status of national and international law in relation to states and corporations can be viewed and contested through the lens of one international order. However, the commitments of jurisdictional thinking cross different paths when the engagements are between nations that are not accorded status as sovereign territorial states. The histories of the acquisition of European empires provide one kind of example. The histories of decolonization or the ending of colonization in settler colonies and nation states provides another. In both accounts the meeting of Indigenous and non-Indigenous jurisdictions has, for nonIndigenous peoples, been engaged through the law of the sovereign territorial state. The contest of jurisdictions and authority, and the insistence of the conduct of lawful relations, have a long and continuing history. So has the conduct of lawful relations apart from the sovereign territorial state and its international orders. In The Land Is the Source of the Law, the Kombumerri and Munaljarli jurisprudent C. F. Black draws out the sense in which a concern with authority and jurisdiction might exist within an Indigenous jurisprudence.89 The conduct of lawful relations is set within Indigenous cosmologies, a law of relationship, and an account of rights and responsibilities. As such, the understanding of lawful relations is considered both in terms of being placed in relation to land and in relation to the dead, the living, and the yet to be born. This patterning, as Black describes it, is concerned with an ecology of the 86 Anthony Anghie, ‘Bandung and the Origins of Third World Sovereignty’, in Louis Eslava, Michael Fakhri, and Vasuki Nesiah (eds.), Bandung, Global History, and International Law (Cambridge University Press), 535–51. 87 Sundhya Pahguja, ‘Letters from Bandung’, in Louis Eslava, Michael Fakhri, and Vasuki Nesiah (eds.), Bandung, Global History, and International Law (Cambridge University Press, 2017), 552–73. 88 Gaita (n. 53), 87–106. 89 C. F. Black, The Land Is the Source of the Law: A Dialogical Encounter with Indigenous Jurisprudence (London: Routledge, 2011), 3.

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Critical Approaches to Jurisdiction 203 law of relationship: the balance through which the dyadic relationship to the land (cosmos) is maintained and the ways in which rights and responsibilities of humans are realized.90 Authority is shaped by an understanding of the land and the law of relationships.91 From this viewpoint, the national and international laws of the common law tradition take on meaning insofar as they can be patterned into an Indigenous jurisprudence. The rights and responsibilities that engage an Aboriginal jurisdiction, Marcia Langton notes, are not organized in terms of the interests of state sovereignty or human rights.92 Likewise, an Indigenous international or transnational law need not cross the public or private international law of non-Indigenous peoples. In this context jurisdictional engagements and their international character are addressed through different relations of authority and law.93 The institutional presence of Indigenous peoples asserting political and jurisdictional authority of their law has both a formal and informal presence in the institutions of international law. The UN Declaration on the Rights of Indigenous Peoples 2007 provides one point of encounter, but so do the Working Group on Indigenous Populations and the UN Permanent Forum on Indigenous Issues.94 These arrangements establish international fora of Indigenous jurisdictions and Indigenous transnationalism.95 Wiradjuri scholar Mark McMillan, amongst others, has addressed the ways in which the international ordering of the United Nations is narrated as a meeting point of laws within the idioms of non-Indigenous legal orders. From the point of view of a contemporary Wiradjuri jurisdiction, he shows how the engagement with the Australian state and AngloAustralian law is a matter of Indigenous international law and jurisdiction.96 Framed as a concern with the limits of the jurisdictional ordering of the international domain, both TWAIL and Indigenous jurisprudents share a concern with articulating different forms of juridical authority and jurisdictional arrangement. For TWAIL scholars, working within the internal idioms of Western international law, jurisdictional encounters have been framed in terms of the critical realignment of legal order and legal self. In jurisdictional engagements and encounters framed between Indigenous and non-Indigenous peoples and laws, McMillan also notes that living with different laws, and different registers of relationships, is made possible through an understanding of the plural jurisdictions of an Indigenous international law. His account of different 90 Ibid., 15–16. 91 Ibid., 107–9. 92 Marcia Langton, ‘Foreword’, in Sean Brennan et al., Treaty (Sydney: Federation Press, 2005). 93 John Borrows, ‘Heroes, Tricksters, Monsters, and Caretakers: Indigenous Law and Legal Education’, McGill Law Journal 61 (2016): 795–846; Mark McMillan, ‘Koowarta and the Rival Indigenous International: Our Place as Indigenous Peoples in the International’, Griffith Law Review 23(1) (2014): 110–26. 94 Resolution adopted by the General Assembly 61/295 on 13 September 2007: http://www.un.org/esa/ socdev/unpfii/documents/DRIPS_en.pdf. The working group was established in 1982 pursuant to the UN Economic and Social Council Resolution 1982/34: http://web.archive.org/web/20060211221540/; http://www.ohchr.org/english/issues/indigenous/groups/wgip.htm#mandate. 95 Ravi da Costa, A Higher Authority: Indigenous Transnationalism and Australia (Sydney: UNSW Press, 2006). 96 McMillan (n. 93), 112.

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204 shaun mcveigh t echniques of jurisdiction is developed through the transmission of the experiences and stories of lawful relationships.97 The training in office of jurist, for McMillan, is a training in two laws, and the narrative and telling of those stories is an inseparable part of his own practice of Wiradjuri jurisprudence.98 In many ways the juristic understanding of jurisdiction is shaped around contest and encounter. In addressing critical approaches to jurisdiction, in this section I have emphasized the way in which forms of jurisdictional engagement require or bring with them accounts of how to engage in the encounter itself.

VI. Conclusion In this chapter, I have described and commented on two aspects of critical approaches to jurisdiction and international law: one emphasizing the place of jurisdiction within critical discourse and the other thinking critically with jurisdictional forms, arrangements, and practices. As a matter of critical discourse, I have stressed the ways in which jurisdictional thinking and techniques provide accounts of authority, and observed the ways in which critical approaches have understood the relation between authority and jurisdiction. In thinking with jurisdictional thought and practice, I have stressed the ways in which the work of jurisdiction has shaped forms of international engagement and forms of public international life. In both accounts, holding on to the prudential character of jurisdiction has drawn attention to the conduct of office and relations of law. In doing this, I have set the concern with jurisdiction in the office of jurisprudent and treated critical approaches as, at least in part, a training in office. The discrete gloss of this chapter has been to show jurisdictional speech and writings as a practice of responsibility. The formulation of critical approaches to jurisdiction has concentrated on the ways in which to draw accounts of jurisdiction into the office of jurisprudent. Its opening gesture was to pluralize the jurisdictional forms and obligations of office, and to note the ways in which specific jurisprudential approaches have presented jurisdictional engagements of international law. Rather than provide a general critical theory of jurisdiction, or of international law, the approach taken in this chapter has been to treat the jurisdictional thinking as a mode of authorizing and crafting 97 Ibid., 122–4. 98 Ibid., 118–20. Jurisdictional accounts of non-Indigenous engagements and meetings of laws form a separable genre of study in jurisprudence, history, cultural studies, and anthropology. Recent accounts of encounters include Ann Genovese (ed.), Australian Critical Decisions: Remembering the Koowarta and Tasmanian Dam Cases (London: Routledge, 2017); Shiri Pasternak Grounded Authority: The Alonguins of Barriere Lake against the State (University of Minneapolis: Minnesota Press, 2017); Shaunnagh Dorsett, Juridical Encounters Māori and Colonial Courts 1840–1852 (Auckland University Press, 2017); Ann Curthoys, Ann Genove, and Alexander Reilly, Rights and Redemption: History, Law and Indigenous People (Sydney: UNSW Press, 2008); Paul Carter, Meeting Place: Human Encounter and the Challenge of Coexistence (Minneapolis: University of Minnesota Press, 2013).

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Critical Approaches to Jurisdiction 205 r elations of law. As a consequence, whilst many of the authors addressed in this chapter are in conversation, no synthesis of approach has been presented. Within the realm of political and legal theory, and also of moral philosophy, questions of jurisdiction have most usually been understood in relation to authority and freedom. In the critical approaches to jurisdiction addressed in this chapter, attention has been drawn instead to the ways in which jurisdictional practice and technique could be viewed as a prudence and conduct of life. In drawing out the training in conduct and the repertoires of the practice of lawful relations, two standpoints have been taken. The first is explicit but not always directly articulated. The office of the jurist is most often located within national universities and concerned with the movement between national, transnational, and international ordering, shaped by sovereign territorial states. The plural jurisdictional forms that shape the international domains take on different forms and have different modes and manners of engagement. The second standpoint follows on from the first. The plurality of jurisdictions has required different forms of jurisdictional responsibility for the office of the jurist.99 Treating jurisdiction in terms of the authorization of relations of law and the engagement of the world also brings with it a displacement of the political and moral consideration of the legitimacy of means, and justification of ends. No doubt this has restricted the repertoires of the critics addressed in this chapter. By staying with the technical means of articulation of authority and of lawful relations, the training of the office of jurist was treated as both ideational and institutional. The training in classical terms was related both to dignity and usefulness. (Although it should also be noted that staying with jurisdictional forms has produced a more expansive and varied account of jurisdiction.) The critical approaches addressed here challenged both the authority and dignity of office and the forms of jurisdictional activity that authorized forms of adjudication, government, and of lives lived with law.100 Finally, the presentation of jurisdiction as a mode of conduct, and the presentation of the critic as providing a training in conduct, joins (or subjects) these jurisprudents and jurists to description, analysis, and contest in terms of the idioms of diverse juristic traditions. It is this that gives texture to the jurisdictional accounts of responsibility for the conduct of lawful relations.

99 Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence beyond Borders (Cambridge University Press, 2012). 100 Ann Genovese, Shaun McVeigh, and Peter Rush, ‘Lives Lived with Law: An Introduction’, Law Text Culture 21 (2016), 1–13.

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Pa rt I V

GE N E R A L I N T E R NAT IONA L L AW

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Chapter 10

Cosmopolita n J u r isdiction a n d th e Nationa l I n ter e st Cedric Ryngaert*

I. Allocating the Exercise of Jurisdiction

212

II. Cosmopolitan Jurisdiction and the National Interest

218

III. Universal Criminal Jurisdiction: An Empirical and Normative Inquiry into National Interests

222

IV. Concluding Observations

226

* The research which resulted in this chapter has been funded by the European Research Council under the Starting Grant Scheme (Proposal 336230—UNIJURIS) and the Dutch Organization for Scientific Research under the VIDI Scheme (No. 016.135.322). This chapter builds on the author’s inaugural lecture given at Utrecht University on 30 March 2015 on the occasion of accepting the Chair of International Law.

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210 Cedric Ryngaert The law of jurisdiction may seem to be inherently conservative. Its foundational principles of territoriality and state sovereignty—in fact, the principles on which the positivist, modern conception of international law itself is based1—appear to be anathema to the development of a more progressive, cosmopolitan agenda based on furthering common interests of the international community.2 In the face of glaring global governance failures, such as climate change and persistent human rights abuses, the exercise of jurisdiction in the common interest may, however, increasingly be called for. On closer inspection, nevertheless, even if the pedigree of the law of jurisdiction does not augur well for the exercise of jurisdiction in the common interest, the principles of jurisdiction may, somewhat surprisingly perhaps, be sufficiently capacious to accommodate the champions of cosmopolitanism.3 For one thing, the principle of territoriality—although originally devised to keep territorial sovereigns apart in line with the billiard-ball view of classic international law—has been moulded to further the common interest, as states have considered even tenuous territorial connections as sufficient to justify their jurisdictional assertions.4 For another, the existence of universal criminal jurisdiction over 1 See for a problematization: Cedric Ryngaert, ‘Territory in the Law of Jurisdiction: Imagining Alternatives’, Netherlands Yearbook of International Law 2016 (2017): 49–82. 2 See on the common interest: Wolfgang Benedek et al. (eds.), The Common Interest in International Law (Antwerp: Intersentia, 2014). 3 Cosmopolitanism is defined here as a notion that, because human beings are part of a global community, they have (moral) obligations towards each other, irrespective of geographic distance. See on cosmopolitanism e.g. Kwame Anthony Appiah, Cosmopolitanism in a World of Strangers (New York: W. W. Norton, 2007). I consider cosmopolitan action as largely interchangeable with action in the common interest, even if the former may be considered as slightly narrower than the latter. Indeed, cosmopolitanism has originally been concerned mainly with realizing the autonomy and dignity which human beings have in common (that was in any event the meaning of Kant’s cosmopolitan law—for a more detailed analysis of the Kantian approach, see also Ch. 9 in this Handbook). In contrast, the interests of the international community may not be limited to human dignity, and pertain, for instance, also to the protection of the global commons, such as clean air, a stable climate, and sustainable fisheries. For a jurisdictional exploration: Cedric Ryngaert, ‘Extraterritorial State Action in the Global Interest: The Promise of Unilateralism’, in Mayaan Amir and Ruti Sela (eds.), Extraterritorialities in Occupied Worlds (New York: Punctum Books, 2016), 219–45. 4 Cedric Ryngaert, ‘Whither Territoriality? The European Union’s Use of Territoriality to Set Norms with Universal Effects’, in Cedric Ryngaert, Erik J. Molenaar, Sarah Nouwen, What’s Wrong with International Law, Liber Amicorum Prof. A. H. A. Soons (Leiden: Brill, 2015), 436–48. See on how the European Union uses sometimes weak territorial connections to extend the reach of EU law: Joanne Scott, ‘Extraterritoriality and Territorial Extension in EU Law’, American Journal of Comparative Law 62 (2014): 87–126. See on the uselessness of territoriality, especially in a cyber-context, given the ubiquitous territorial connections of conduct in cyberspace: Dan Svantesson, ‘A New Jurisprudential Framework for Jurisdiction: Beyond the Harvard Draft’, American Journal of International Law 109 (2015): 69–74. Actual legal practice is rife with examples of a (territorial) nexus triggering jurisdiction in—what could be considered as—the common interest. Multiple states have exercised jurisdiction over vessels engaged in illegal, unreported, or unregulated fishing on the high seas—a major threat to global fish stocks—when such vessels dock in their ports, over which states normally exercise full territorial sovereignty. The European Union has regulated emissions from foreign aviation—emissions that contribute to global warming—insofar as they landed on, or departed from, EU aerodromes, i.e. EU territory. Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2009] OJ L 8/3; Court of Justice of the JEU, Air Transport Association of

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Cosmopolitan Jurisdiction and the National Interest 211 core crimes against international law has been hailed as evidence of rising cosmopolitan solidarity among states and communities,5 jurisdictional solidarity which in future may possibly also extend to other offences.6 While some existing principles of jurisdiction may well accommodate the exercise of jurisdiction in the common interest, it would nonetheless be intellectually dishonest to dismiss the objection that such jurisdiction is in reality not, or seldom, exercised. If that objection is valid, and states are indeed not able and willing to act as jurisdictional agents of the international community, cosmopolitanism will remain dead letter.7 This chapter examines the variables that may determine the exercise of jurisdiction in the common interest. Its methodology is in the first place hermeneutical. It inquires what explanatory variables determine the dependent variable of the (non-)exercise of jurisdiction in the common interest, based on actual jurisdictional practice of states (and the European Union). However, the chapter’s approach is also normative, where it seeks to justify particular interest-based practices of jurisdiction, or recommends reform. Ultimately, this chapter is a reflective and practically informed piece of doctrinal work. Drawing on realism and actual practice,8 it is posited that the exercise of jurisdiction in the common interest is unlikely unless the state has a nexus to the situation subject to America et al. v Secretary of State for Energy and Climate Change, judgment of 21 December 2011, para. 104. The United States has proved willing to establish jurisdiction, e.g. to tackle international corruption or drugs-trafficking, as soon as some aspect of a transnational activity has a connection with the United States, ‘even if that aspect is fleeting and minor relative to the rest of the conduct comprising the claim’. Anthony J. Colangelo, ‘What Is Extraterritorial Jurisdiction?’, Cornell Law Review 99 (2014): 1303–52, 1306. However, on other occasions it has rejected jurisdiction where a nexus was clearly present. Cf. Morrison v National Australia Bank, 561 US 247 (2010). 5 Carly Nyst, ‘Solidarity in a Disaggregated World: Universal Jurisdiction and the Evolution of Sovereignty’, Journal of International Law and International Relations 8 (2012): 36–59, 58 (arguing that ‘a study of universal jurisdiction complaints and prosecutions provides countless examples of the abridgement of traditional restrictions of territorial jurisdiction in the name of a community of humankind’). 6 The catalogue of offences amenable to such universal (connection-less) jurisdiction is, moreover, open-ended and expandable. E.g. genocide and war crimes committed in non-international armed conflicts were initially not considered to be amenable to universal criminal jurisdiction, Notably, the Genocide Convention and the Geneva Conventions did not provide for universal jurisdiction over these offences. However, later state practice has confirmed universal jurisdiction over them. See for genocide e.g. Jorgic v Germany, App. No. 74613/01, ECtHR, judgment of 12 July 2007. See for war crimes committed in non-international armed conflicts: International Committee of the Red Cross, Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005), Rule 157. Also, the 1982 UN Convention on the Law of the Sea inserted a provision (Art. 218) allowing for the exercise of apparently universal port state jurisdiction over discharges. 7 Roland Pierik and Wouter Werner, ‘Can Cosmopolitanism Survive Institutionalization?’, in Roland Pierik and Wouter Werner (eds.), Cosmopolitanism in Context: Perspectives from International Law and Political Theory (Cambridge: Cambridge University Press, 2010), 284. 8 See on realism and international law e.g. Andrea Bianchi, ‘International Relations and Social Science Methodologies’, in Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford: Oxford University Press, 2016), ch. 6; Oliver Jütersonke, ‘Realist Approaches to International Law’, in Anne Orford and Florian Hoffman (eds.), The Oxford Handbook of the Theory of International Law (Oxford: Oxford University Press, 2016).

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212 Cedric Ryngaert regulation. The presence of a nexus may in fact serve to allocate jurisdictional authority and responsibility, and encourage action in the common interest. In practice, however, because the exercise of jurisdiction under international law is in principle discretionary, there is no guarantee that the state to whom jurisdiction is allocated will also assume it. As such, non-exercise of jurisdiction may have detrimental effects for global justice and global welfare, and therefore a second-order jurisdictional authority for ‘bystander’ (i.e. less closely connected) states may be called for (Section I). Nevertheless, realistically, bystander states are only likely to exercise ‘cosmopolitan’ jurisdiction if this also serves their national interests (Section II). It is argued that this limitation of cosmopolitan action need not be regrettable. Instead, it could, in appropriate circumstances, be justified from a normative perspective. The contribution discusses the variables determining the (non-)exercise of universal criminal jurisdiction in particular to support the argument that the exercise of universal jurisdiction is both empirically and normatively dependent on the presence of a national interest (Section III).

I. Allocating the Exercise of Jurisdiction Rational choice theorists of international relations and international law would posit that the taking of state action is a function of the maximization of national welfare.9 On that basis, some of them may all but close the door to jurisdiction in the common interest.10 It may however be entirely rational for a state to exercise its jurisdiction, also if this turns out to be in the common interest, when a state nexus is initially present.11 The presence

9 Alexander Thompson, ‘Applying Rational Choice Theory to International Law: The Promise and Pitfalls’, Journal of Legal Studies 31 (2002): S285–S306. 10 E.g. Jack Goldsmith and Stephen D. Krasner, ‘The Limits of Idealism’, Daedalus 132 (2003): 47–63. 11 E.g. Rain Liivoja, ‘The Criminal Jurisdiction of States: A Theoretical Primer’, No Foundations 7 (2010): 25–58, 25 (‘A State generally has little interest in spending its scarce resources on investigating offences that it has little or no connection to.’). Rational choice-inspired scholars have observed that individual or group morality informs state behaviour in relation to international law. See e.g. Jens David Ohlin, The Assault on International Law (Oxford: Oxford University Press, 2015), 103; Anne van Aaken, ‘Behavioral International Law and Economics’, Harvard International Law Journal 55 (2014): 421–81, 448 (drawing inspiration from behavioural economics, and describing altruistic behaviour of states on the basis of consumer preferences). In this article it is argued that the morally informed or altruistic exercise of jurisdiction is however conditional on the presence of a state connection or interest, which need however not be narrowly construed. See on conditional international law: Gregory Shaffer and Tom Ginsburg, ‘The Empirical Turn in International Legal Scholarship’, American Journal of International Law 106 (2012): 1–7.

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Cosmopolitan Jurisdiction and the National Interest 213 of a ‘nexus’, however constructed,12 ordinarily points to the presence of an interest of the state. This logically renders the exercise of jurisdiction more likely.13 In fact, using ‘nexus’ may increase the prevalence of jurisdictional action in the common interest as it goes some way to allocate responsibility: it circumscribes and thus defines the circle of actors competent to take action. If, in contrast, one were to promote a version of non-nexus-based, universal, cosmopolitan jurisdiction, no one may take action at all. The irony is apparent. Such jurisdiction may have been designed to address multilateral free-rider behaviour, but comes with its own free-rider problems: making everyone responsible to tackle a problem, may in practice be a recipe for doing nothing. Indeed, social psychologists have experimentally proved that group size has an impact on the likelihood that people help others in a state of emergency.14 The prosecution, or rather non-prosecution, of piracy is instructive in this respect. Under international law, every state has the right to arrest and prosecute pirates under the universality principle, for such pirates are considered to be hostes humani generis; they threaten the community of states at large. In practice, however, universal jurisdiction over piracy is hardly exercised. Even when patrolling vessels—for instance, off the coast of Somalia—come across pirates and arrest them, they are likely not to prosecute them, in particular not if no merchant vessel flying the flag of the intervening state has been attacked or threatened with attack. Even when a national interest is involved, 12 When exactly a transnational activity has a nexus with a state is not self-evident, but depends on what law-appliers consider as a relevant nexus. This means that transnational acts could sometimes rather artificially be ‘located’ within a particular state’s territory. Colangelo (n. 4), 1323 (‘[E]ven seemingly straightforward jurisdictional questions of geography often hinge on some predicate legal determination about where, exactly, one locates the relevant aspect or aspects of a claim or suit.’). See e.g. the US Supreme Court’s principle that application of the presumption against extraterritoriality requires an analysis of the ‘statutory focus’. In Morrison, for instance, the Court held that the relevant (securities law) statute’s focus was not on fraudulent conduct but rather on the sale and purchase of securities. As the latter occurred abroad, there was no relevant nexus to the US, and hence no jurisdiction. Morrison v National Australia Bank (n. 4). 13 However, the precise ambit of the legal norm applied may vary, depending on the strength of the nexus, or the nature of the norm. See Liivoja (n. 11), 36 (submitting that ‘every individual norm possesses some sort of ambit’). Compare e.g. Morrison (considering fraudulent acts in the US producing effects abroad as not sufficient to find jurisdiction under US securities regulations) with Pasquantino v United States, 544 US 349, 365 (2005) (finding jurisdiction over a wire fraud devised in the US but producing effects in Canada). Not, however, that the ambit of categories of norms may be laid down by law, e.g. in the general part of the criminal law, which typically considers territory to be the relevant nexus. 14 See for early work in social psychology: John M. Darley and Bibb Latané, ‘Bystander Intervention in Emergencies: Diffusion of Responsibility’, Journal of Personality and Social Psychology 8 (1968): 377–83; Mark R. Leary and Donelson R. Forsyth, ‘Attributions of Responsibility for Collective Endeavors’, Personality and Social Psychology Review 8 (1987): 167–88. See for more recent work: Karin E. Tobin, Melissa A. Davey, and Carl A. Latkin, ‘Calling Emergency Medical Services during Drug Overdose: An Examination of Individual, Social and Setting Correlates’, Addiction 100 (2005): 397–404; Christian Vaillancourt, Ian G. Stiell, and George A. Wells, ‘Understanding and Improving Low Bystander CPR Rates: A Systematic Review of the Literature’, Journal of the Canadian Association of Emergency Physicians 10 (2008): 51–65; Karl H. Teigen and Wibecke Brun, ‘Responsibility Is Divisible by Two, but not by Three or Four: Judgments of Responsibility in Dyads and Groups’, Social Cognition 29 (2011): 15–42.

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214 Cedric Ryngaert patrolling vessels are likely to either release pirates after catching them, or turn them over to another state—notably Kenya, which operates anti-piracy courts sponsored by the international community—rather than to their own prosecutorial authorities. This may be so for a variety of reasons. Bystander states may not have national laws allowing for piracy prosecution,15 and even if they have them, prosecution in the arresting state’s own courts may be far too costly, and unsuccessful prosecution may well cause the pirate to seek asylum in the bystander state, which, by virtue of the principle of non-refoulement, may be prevented from sending him back to his home state.16 Possibly most importantly, states may just reason that it does not increase national welfare—rather on the contrary—to prosecute a foreign pirate who has hijacked a foreign ship with foreign crew.17 Kontorovich and Art have succinctly put this conundrum as follows: ‘perhaps the most obvious reason for the lack of universal jurisdiction is the fact that it is universal’.18 Or as Kontorovich argued in another publication: in economic terms, universal jurisdiction transforms claims ‘into a global common resource, preventing several ownership’, which in turn prevents them from being ‘put to their social highest valued use’—thus ultimately decreasing global welfare.19 In other words, universal jurisdiction may lead states to shirk their cosmopolitan responsibilities: their reasoning that other states should also bear the enforcement burden may ultimately yield the outcome that no state takes action.20 Relying on ‘nexus’, instead, could serve as an incentive for states to assume their responsibility. Indeed, the immediacy of the encounter produced by the nexus of an act, actor, or situation with the state may bring to its attention how this jeopardizes common as well as local interests, and create opportunities for remedial action through the exercise of jurisdiction.21 At the same time, from a positivist international law perspective, ‘nexus’ allows states to err on the safe side of jurisdictional caution: jurisdictional claims 15 Yvonne Dutton, ‘Maritime Piracy and the Impunity Gap: Insufficient National Laws or a Lack of Political Will?’, Tulane Law Review 86 (2012): 1111–63, 1120. 16 Emmanuel Obuah, ‘Outsourcing the Prosecution of Somali Pirates to Kenya: A Failure of International Law, or a Response to Domestic Politics of States?’, African Security Review 21 (2012): 40–61, 50. 17 Milena Sterio, ‘Piracy off the Coast of Somalia: The Argument for Piracy Prosecutions in the National Courts of Kenya, The Seychelles, and Mauritius’, Amsterdam Law Forum 4 (2012): 104–23, 111 (wondering why the United Kingdom should pay for the exercise of universal jurisdiction on behalf of a Liberian vessel owned by a Dutch corporation and employing a Philippine crew). 18 Eugene Kontorovich and Steven E. Art, ‘An Empirical Examination of Universal Jurisdiction for Pirates’, American Journal of International Law 104 (2010): 436–53, 453. From these authors’ research it transpires that between 1998 and 2009, 1,158 pirate attacks on the high seas were reported. Only seventeen prosecutions were brought under the principle of such universal jurisdiction (i.e. only 1.47% of the attacks reported), even though all those attacks were subject to universality. 19 Euegene Kontorovich, ‘The Inefficiency of Universal Jurisdiction’, University of Illinois Law Review 2008(1) (2008): 389–418, 395, arguing in respect of universal jurisdiction over piracy. 20 See also Frédéric Mégret, ‘The “Elephant in the Room” in Debates about universal Jurisdiction: Diasporas, Duties of Hospitality, and the Constitution of the Political’, Transnational Legal Theory 6 (2015): 89–116, 95. 21 See on the ethics of encounter: Emmanuel Levinas, Totalité et Infini. Essai sur l’extériorité (The Hague: Martinus Nijhoff 1961).

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Cosmopolitan Jurisdiction and the National Interest 215 that are grounded on a nexus with the state, in particular a territorial nexus, are much more likely to pass the legality test. In addition, they provide some legal certainty to individuals and operators who can anticipate falling within the ambit of the law if their conduct has a nexus with the state.22 From an enforcement point of view, the law of jurisdiction may have to be geared towards facilitating nexus-based jurisdiction. This may even normatively imply that bystander states—which have no or only a weak nexus to the case—should, if possible, refrain from exercising jurisdiction. Indeed, too readily assuming such jurisdiction may give rise to free-rider behaviour of states that do have a strong connection to the case: the availability of remedies elsewhere may discourage them from assuming their own jurisdiction. For instance, in the Kiobel litigation arising under the US Alien Tort Statute (ATS) before the US Supreme Court, the United Kingdom and the Netherlands argued in their amicus brief that the exercise of universal civil jurisdiction by a bystander state would give states with a nexus to the case ‘reason to downplay and even ignore their own international human rights law obligations’ and that ‘[t]hey will also not come under pressure to provide a remedy, and indeed prevent abuses, if plaintiffs have recourse to redress elsewhere’.23 Possibly swayed by these arguments, the Court eventually went on to reject a broad jurisdictional construction of the Alien Tort Statute,24 a decision that, regardless of the technicalities, may have been informed by the concern that US courts may become global human rights enforcers undercutting the responsibility of other states. Indeed, holding that it was not the duty of the United States to be the ‘custos morum of the entire world’, the Court implied that the US legal system should not spend precious judicial resources that other, more closely connected, free-riding states may be unwilling to spend.25 The same anti-imperialist concern26 is oozed by the earlier US Supreme Court decision in Empagran (2004), which dismissed a claim brought by foreign victims of a worldwide vitamins cartel in respect of foreign harm.27 Arguably, opening up US courts to such a claim would come down to the United States bearing the international antitrust enforcement burden alone and becoming the ‘global antitrust 22 Cf. An Hertogen, ‘Letting Lotus Bloom’, European Journal of International Law 26 (2015): 901–26, 919 (‘The territorial allocation of prescriptive jurisdiction provides certainty to individuals, who do not need to determine the nationality of those with whom they interact to determine which legal system governs their interaction.’). Hertogen argues against an overly strict interpretation of territoriality, however (at 920). 23 Brief of the Governments of the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of Neither Party, Kiobel v Royal Dutch Petroleum Co., 133 S. Ct 1659 (2013) (No. 10–1491), 25, https://www.americanbar.org/content/dam/aba/publications/ supreme_court_preview/briefs/10-1491_neutralamcunetherlands-uk-greatbritain-andirelandgovs.authcheckdam.pdf. 24 Kiobel v Royal Dutch Petroleum Co., 133 S. Ct 1659 (2013) (applying the presumption against extraterritoriality). 25 Ibid., 1668; and at 1669 quoting Morrison v National Australia Bank, 130 S. Ct 2869, 2878 (2010) (citing the ‘presumption that United States law governs domestically but does not rule the world’). 26 See on territorialism as anti-imperialism: Jenny S. Martinez, ‘New Territorialism and Old Territorialism’, Cornell Law Review 99 (2014): 1387–414. 27 F. Hoffmann-LaRoche Ltd v Empagran SA, 542 US 155, 159–65 (2004).

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216 Cedric Ryngaert cop’.28 As a result, foreign plaintiffs’ home states may just free-ride on US investigatory and litigation efforts. The argument thus is that, in order to prevent free-riding by more closely connected states, it may be advisable to allocate jurisdiction to states with a convincing nexus to a situation, and for more loosely connected states to refrain from exercising their ‘cosmopolitan’ jurisdiction. From a normative perspective, this nexus-based allocation principle also encourages regulatory and democratic learning, local ownership, and—as far as localized (human rights) wrongs are concerned—facilitates transnational justice efforts steered by the directly affected societies rather than by distant strangers.29 Allocating jurisdiction to states with a (strong) nexus and disavowing the jurisdiction of prima facie less-concerned bystander states, along the lines sketched here, sounds attractive. Unfortunately, however, it falls short in practice. This is mainly because the law of jurisdiction is largely based on discretionary authority rather than obligation.30 Consequently, jurisdictional deference by one state does not always result in the assumption of jurisdiction by another state, even if the facts call for regulatory intervention of some sort. Abstract concerns over free-riding behaviour flowing from too-ready cosmopolitan assertions of jurisdiction may then result in the absence of any state exercising jurisdiction, to the detriment of the specific interests of individual victims of injustice, or of the global commons. The above-mentioned cases of Kiobel and Empagran demonstrate this well. The Court’s declining of jurisdiction in Empagran left the victims of the vitamins cartel out in the cold, as they could not recover their damages anywhere, their local courts being inaccessible.31 From a global justice perspective, this outcome is not satisfactory. Instead, the Court could have heeded the argument advanced in an amicus brief drafted by two economists, who called on the Court to take into account global deterrence in US antitrust litigation, and thus to provide a remedy for antitrust harm suffered in foreign transactions.32 Also, Kiobel shows that concerns over foreign nations free-riding on the efforts of one state risks leaving individual plaintiffs without any remedies.33 The aforementioned amicus brief of the United Kingdom and the 28 Hannah Buxbaum, ‘National Jurisdiction and Global Business Networks’, Indiana Journal of Global Legal Studies 17 (2010): 165–81, 175 (‘[T]he court retreated into its “natural” space of engagement. It did not really engage the substance of the plaintiffs’ argument regarding global under-deterrence . . . ’). Formally speaking, the Court declined to exercise jurisdiction over separate foreign antitrust harm on the ground that the non-economic principle of non-intervention in the affairs of foreign states carried more weight. However, as there was little evidence of foreign nations taking issue with the US exercise of jurisdiction in the case, the Court in fact feared that foreign plaintiffs would flock to US courts if the Court would construe the geographical ambit of US antitrust law too widely. 29 Cf. H. Moodrick-Khen, ‘Revisiting Universal Jurisdiction: The Application of the Complementarity Principle by National Courts and Implications for Ex-Post Justice in the Syrian Civil War’, Emory International Law Review 30 (2015): 261–311. 30 See, however, on the shift from permission to duty: Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84 (2014): 187–239. 31 Ralf Michaels, ‘Global Problems in Domestic Courts’, in Sam Muller et al. (eds.), The Law of the Future and the Future of the Law (Oslo: Torkel Opsahl Academic EPublisher, 2011). 32 Brief of Amici Curiae Economists JE Stiglitz and PR Orszag in Support of Respondents, F. HoffmannLaRoche v Empagran SA, 542 US 155 (2004) (No 03–724). 33 But see the civil case brought in early 2017 by Esther Kiobel against Shell in the Netherlands. See Het Financieele Dagblad, ‘Nigeriaanse activiste daagt Shell voor rechter in Nederland’, 13 January 2017.

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Cosmopolitan Jurisdiction and the National Interest 217 Netherlands in fact appears to be a classic example of states’ own narrowly conceived national economic interests masquerading as global welfare arguments. Both states obviously wished to shield Shell, an Anglo-Dutch corporation, from liability in US courts, rather than to allocate responsibility among states. US litigation under the universality principle did not diminish the opportunities or incentives for the United Kingdom or the Netherlands to assume their own legal responsibility with respect to Shell’s activities in Nigeria, but both states arguably never had an interest in doing so in the first place.34 On the contrary, litigation in bystander state courts could set in motion processes of broader social and legal reform in the more closely connected states by exposing patterns of misconduct. For instance, the ‘Pinochet effect’ in Latin America— the impact of the Spanish indictment, under the universality principle, of the former Chilean dictator on criminal proceedings against torturers in Chile and elsewhere in South America—has been well-documented.35 Thus, the initial exercise of c osmopolitan jurisdiction, rather than encouraging free-riding, may prevent future free-riding in that strengthened local jurisdictional capacity reduces reliance on foreign jurisdiction. For this reason, when the exercise of ‘local’ jurisdiction is unlikely, bystander states showing only a weaker nexus may want to give ‘temporary’ protection with a view to spurring other states into action in the global interest.36 This could be defined as positive jurisdictional subsidiarity or complementarity.37 The Dutch case is however not exactly the same as the case brought in the United States. The latter concerned Shell’s aiding and abetting of the Nigerian government’s crushing of Ogoni resistance to oil development in the Niger River Delta, whereas the former only concerns Shell’s complicity in the killing of Barinem Kiobel in 1995. 34 Uta Kohl, ‘Corporate Human Rights Accountability: The Objections of Western Governments to the Alien Tort Statute’, International and Comparative Law Quarterly 63 (2014): 665–97, 684 (‘States that have a connection with the dispute based on the nationality of the parent company (in Kiobel, the UK and the Netherlands) also have no real interest in holding the parent accountable for its or its subsidiary’s behaviour abroad which injures people to whom they are not politically accountable.’). 35 Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3), [2000] 1 AC 147 (HL 1999). Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia: University of Pennsylvania Press, 2006). See on the impact of Spanish universal jurisdiction on proceedings in Guatemala: Amy Ross, ‘The Ríos Montt Case and Universal Jurisdiction’, Journal of Genocide Research 18 (2016): 361–76. See on the impact of universal jurisdiction on proceedings in Rwanda: Leila Sadat, ‘Transjudicial Dialogue and the Rwandan Genocide: Aspects of Antagonism and Complementarity’, Leiden Journal of International Law 22 (2009): 543–62. 36 The notion of ‘temporary protection’ has been developed in the field of migration law (e.g. UNHCR, Guidelines on Temporary Protection or Stay Arrangements, February 2014), where it is an exceptional measure to give protection to displaced persons unable to return to their country of origin. Likewise, states may exercise their universal jurisdiction to protect individuals who would otherwise go unprotected, in particular, to whom justice could not be served. Unlike in migration law, however, temporary protection in the law of jurisdiction may have a telos. As jurisdictional assertions regarding international crimes and gross human rights violations often implicitly pass judgement on a foreign state’s policies and practices, they may be considered, or even intended as a lever to bring about structural change in the latter state. When such change has occurred, there may no longer be a need for the bystander state to exercise its jurisdiction. 37 See on subsidiarity and universal jurisdiction: Cedric Ryngaert, ‘Universal Jurisdiction over International Crimes and Gross Human Rights Violations: The Role of the Principle of Subsidiarity’, The Global Community Yearbook of International Law and Jurisprudence (2015): 275–89. Note that the bystander state does not necessarily have the weaker nexus or interest than the territorial or national

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II. Cosmopolitan Jurisdiction and the National Interest In the first section, two arguments have been made. It has been submitted that states are, realistically, more likely to exercise jurisdiction in the global interest when they have a nexus to the situation at hand. At the same time, a warning was sounded not to draw the normative inference that the presence of a strong nexus is a necessary condition for the legitimate exercise of jurisdiction. Where global and individual justice are jeopardized, bystander states sporting only a weak nexus should be allowed to exercise complementary or subsidiary jurisdiction. However, for the actual exercise of jurisdiction, whether or not a nexus (typically a territorial one) is present, is ultimately of lesser relevance than the presence of a national interest or a national goal.38 The realist paradigm indeed has it that states will follow a particular course of conduct if they perceive such a course to be in their—or their constituents’—interest, however defined.39 Realist approaches normally limit the space for cosmopolitan action, as such action by bystander states is not likely to further the latter’s interests. The outcomes in the aforementioned Kiobel and Empagran cases, for instance, can be explained by a concern that a more cosmopolitan jurisdictional outlook may diminish, or at least not further ‘the national interest’.40 These cases are concrete instantiations of a more general and rather well-entrenched jurisdictional realism that is distrustful of cosmopolitanism on the ground that rulers of states, at least in liberal-democratic states, are beholden to their voters, who may punish them in case they prioritize the interests of others over theirs.41 In theory, state rulers state. In this case, reliance on subsidiarity may make little sense. For instance, Mégret has criticized the subsidiarity principle on the ground that there is no unproblematic metric to compare whether prosecution of an international criminal in the territorial state is more important than in the ‘bystander’ state, especially not when the alleged criminal has fled to the bystander state where survivors of his crimes are also present. Mégret (n. 20), 105. Mégret’s view should however not be viewed as an indictment of the subsidiarity principle, as the latter should arguably only counsel deference to the territorial or national state in case that state also has the stronger nexus to the situation, in the sense of suffering the most ‘deviance from expressed norms of legal behaviour’. See on the latter Danielle Ireland-Piper, ‘Extraterritorial Jurisdiction and the Cosmopolitan: A Double-Edged Sword’ (2017) forthcoming (paper on file with the author), 13. 38 E.g. M. Farbiarz, ‘Extraterritorial Criminal Jurisdiction’, Michigan Law Review 114 (2016): 507–57, 508 (‘Over and over during the past few decades, the federal government has launched ambitious international prosecutions in the service of U.S. national security goals.’) (emphasis added). 39 In the most general sense, a national interest could be defined as the advantage or benefit enjoyed by a state (nation), or, alternatively as a common concern of a territorially delimited polity (state). See Oxford English Dictionary (online), definition of ‘interest’. 40 Kohl (n. 34), 685 (arguing that ‘unconnected States have no obvious economic or political interest in monitoring these obligations towards foreign citizens to whom they are not legally or politically accountable’). 41 Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford: Oxford University Press, 2005), 212. Non-democratic states may not be beholden to their voters and may consequently not incur any electoral punishments. Arguably, enlightened rulers of such states could more easily engage in

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Cosmopolitan Jurisdiction and the National Interest 219 will thus be forced to abandon a cosmopolitan discourse, or when using it do so strategically to advance their voters’ interests. Even when harbouring cosmopolitan sentiments, states may be unwilling to shoulder the cosmopolitan burden alone. Exercising unilateral jurisdiction may, as argued here, cause other states to free-ride on the former’s efforts, or invite protest against jurisdictional overreach, inducing states in turn to scale back their efforts. This is a classic collective-action problem. A perception that the national interest is not at stake;42 fear of upsetting foreign nations and thus inviting retaliatory action;43 or concerns over judicial complications,44 costs, and wasting scarce national resources all militate against cosmopolitan action. Research into the actual exercise of universal criminal jurisdiction, for instance, has shown that such jurisdiction is normally only exercised when the stakes are not very high—for example, over lower-ranking perpetrators, in which case the risk of upsetting foreign nations is limited.45 In addition, resource and capacity problems have undoubtedly informed decisions not to prosecute,46 as domestic resources are more likely to be jurisdictional cosmopolitanism. In reality, however, so as to remain in power, also such rulers may tend to espouse a nationalist discourse and to defend the national interest, sometimes more fiercely so than in democratic states. See e.g. on Chinese nationalism: Alastair Ian Johnston, ‘Is Chinese Nationalism Rising? Evidence from Beijing’, International Security 41 (2016/17): 7–43. In any event, there is no empirical evidence of non-democratic states exercising universal jurisdiction over core crimes against international law. 42 Note that, rather exceptionally, outside a cosmopolitan context, even when a national interest is at stake and a jurisdictional grant is apparent, courts may for technical jurisdictional reasons not exercise jurisdiction. See e.g. Lindsay Farmer, ‘Territorial Jurisdiction and Criminalization’, University of Toronto Law Journal 63 (2013): 225–46, 226–7, citing R v Serva (1845), 1 Den 104, 169 ER 169 and R v Keyn (1876–7), LR 2 Ex D 63, arguing that in these cases ‘English courts declined jurisdiction in situations where it might easily have been claimed—and in the face of strong political demands’, basing their reasoning ‘on the analysis of a highly technical body of law’. 43 It is observed that not exercising (extraterritorial) jurisdiction might under certain circumstances also lead to foreign protest. See e.g. the case of R v Bernard (1858), 1 F&F 240, in which an English court acquitted a man involved in a plot on the life of Napoleon III for reasons of uncertainty as to whether the man had committed a crime under English law. The acquittal led to French protests. Case cited in Farmer (n. 42). 44 E.g. Helen L. Trouille, ‘France, Universal Jurisdiction and Rwandan Génocidaires: The Simbikangwa Trial’, Journal of International Criminal Justice 14 (2016): 195–217, 214 (describing how in a French universal jurisdiction case, ‘[t]he first two weeks of the trial were spent setting the context for the three judges and the jurors of a genocide that occurred 20 years previously, 7,000 kilometres away, in a country in which, in all probability, none of them had ever set foot’.) Note that in that very case universal jurisdiction was exercised and the accused was convicted. 45 Máximo Langer, ‘The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes’, American Journal of International Law 105 (2011): 1–49. 46 E.g. when the South African Police Service considered itself unable to initiate an investigation into torture committed in Zimbabwe, citing practical problems in particular. Republic of South Africa Constitutional Court, National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another (CCT 02/14) [2014] ZACC 30; 2015 (1) SA 315 (CC); 2015 (1) SACR 255 (CC) (30 October 2014), para. 15. The South African Constitutional Court acknowledged practicability as a legitimate limiting principle, averring at para. 64 that ‘[f]oremost amongst these [practical] considerations are whether the investigation is likely to lead to a prosecution and accordingly whether the alleged perpetrators are likely to be present in South Africa on their own or through an extradition request; the geographical proximity of South Africa to the place of the crime and the likelihood of the

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220 Cedric Ryngaert spent to address domestic problems. In the end, prosecutors are unlikely to take action in the global interest when there is not at least a national interest at stake, as also evidenced by a statement of the chief prosecutor of Hamburg, Germany, regarding the prosecution of piracy: ‘[T]he German judicial system cannot, and should not, act as World Police. Active prosecution measures will only be initiated if the German State has a particular, well-defined interest.’47 In civil cases, the courts have also often construed broad jurisdictional mandates restrictively, and ultimately emphasized the state’s national interest. The vagaries of the Alien Tort Statute illustrate this well. On its face, this US Statute is a cosmopolitan’s dream in that it appears to confer universal tort jurisdiction over US federal courts in respect of violations of international law and, after its ‘rediscovery’ in 1980, some US courts were indeed willing to offer a remedy to foreign victims in respect of foreign harm committed by foreign perpetrators.48 However, ultimately, in Kiobel, the Supreme Court limited the jurisdictional scope of the ATS to claims ‘touching and concerning’ the United States ‘with sufficient force’.49 Even the minority judges in Kiobel were of the view that the Alien Tort Statute should be interpreted as ‘providing jurisdiction only where distinct American interests are at issue’.50 Admittedly, to the extent that cosmopolitan values are seen as reflecting domestic values, institutions, and interests, the former may actually strengthen the latter, and thus open up a space for cosmopolitan action. In international relations, this is termed ‘second image reversed’.51 When states have had a strong influence on the making of international law, the odds of domestic ‘cosmopolitan’ enforcement of international law in such states may be higher.52 And even where states and their officials consider the ‘national interest’ to be their guiding light, they need not understand this as a parochial concept per se at loggerheads with cosmopolitan action. For instance, the aforementioned minority judges in Kiobel were in favour of the exercise of jurisdiction in case the defendant’s conduct substantially and adversely affects an important American national suspects being arrested for the purpose of prosecution; the prospects of gathering evidence which is needed to satisfy the elements of a crime; and the nature and the extent of the resources required for an effective investigation’. 47 Cited in Kontorovich and Art (n. 18), 451. See also Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’, American Journal of International Law 108 (2014): 1–40, 28 (‘US courts do not see their role as solving problems of a global nature as such.’). 48 See e.g. Filártiga v Peña-Irala, 630 F 2d 876 (2d Cir. 1980); Kadic v Karadzic, 70 F 3d 232 (2d Cir. 1995). 49 Kiobel v Royal Dutch Petroleum Co. (n. 24), 1669 (‘[E]ven where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.’). 50 Ibid., 1674. 51 Peter Gourevitch, ‘The Second Image Reversed’, International Organization 32 (1978): 881–912. This theory holds that domestic structures and institutions are the consequence of states’ positions of relative power in international politics. 52 See Lisa Conant, ‘Whose Agents? The Interpretation of International Law in Domestic Courts’, in Jeffrey L. Dunoff and Mark A. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge: Cambridge University Press, 2012), 394–420, 411–12.

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Cosmopolitan Jurisdiction and the National Interest 221 interest, including a distinct interest in preventing the United States from becoming a safe harbour (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.53 As international criminals are unlikely to repeat their crimes on US soil in the absence of a context propitious to their commission, this scenario actually has cosmopolitan overtones. It is arguably in the interest of every state, including the United States, to see to it that justice is done regarding international crimes, as such crimes affect the international community and all its constituent members.54 A similar view can be found in the 2014 decision of the South African Constitutional Court in the Zimbabwe case, in which it ruled that ‘[g]iven the international and heinous nature of the crime of torture, South Africa has a substantial connection to it’.55 This appears to be jurisdictional cosmopolitanism in its purest form: international crimes are considered as having a nexus with every state, and every community interest is considered as a national interest. The South African decision is a fine example of how unconnected states, in spite of realist considerations militating against jurisdictional cosmopolitanism, have assumed their responsibility, especially by exercising universal jurisdiction over gross human rights violations.56 Or as Uta Kohl has observed, bystander states may want to act in such a cosmopolitan fashion ‘perhaps simply because it is the right thing to do’.57 This idea that states should exercise universal jurisdiction because it is morally appropriate may be compelling. However, states exercising ‘cosmopolitan’ jurisdiction rarely do so only because it is the right thing to do, but rather because it is (also) in their national interest. Below in Section III, this is illustrated by the exercise of universal criminal jurisdiction. The analysis does not limit itself to observing empirical patterns, however. It is also argued that sound ‘national interest’-based reasoning may be normatively preferable over abstract cosmopolitanism, as it provides reasons for action that strengthen a polity’s identity and values.

53 Kiobel v Royal Dutch Petroleum Co. (n. 24), 1674 (going on to find, however, that the impugned conduct and the parties did not have a sufficient nexus with the US under this test). 54 Cf. ibid., 1675 (writing that in the Filartiga decision, ‘[j]urisdiction was deemed proper because the defendant’s alleged conduct violated a well-established international law norm, and the suit vindicated our Nation’s interest in not providing a safe harbor, free of damages claims, for those defendants who commit such conduct’). 55 Republic of South Africa Constitutional Court, National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another (n. 46), para. 78 (adding that, hence, ‘[a]n investigation within the South African territory does not offend against the principle of non-intervention’). 56 In the South African case, the Constitutional Court, after confirming the cosmopolitan connection of the case with South Africa, eventually rejected the practical problems cited by the police, held that there was a reasonable possibility that the police would gather evidence that may satisfy the elements of the crime of torture, and subsequently ordered the police to investigate the complaint. In so doing, it confirmed that practical difficulties should not be used as an excuse for a failure to act in the global interest. Ibid. 57 Kohl (n. 34), 685.

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III. Universal Criminal Jurisdiction: An Empirical and Normative Inquiry into National Interests A vast pool of cases potentially qualify for universal jurisdiction. However, a specific pattern may be discerned in the kind of cases that are actually brought. Such cases, while formally brought by an independent public prosecutor, typically result from pressure brought to bear on prosecutors by victim communities that have sought refuge in a bystander state. Thus, Frédéric Mégret has pointed out that universal jurisdiction ‘is almost never exercised in a pure supranationalist void by states “sacrificing themselves” for the global public good’, but instead ‘almost always follows existing patterns of transnational interaction between states’; in particular, ‘victim diasporas’ are ‘the crucial variable in understanding the evolving practice of [universal jurisdiction] as it actually unfolds in reality’.58 The cases brought in Spain under the universality principle against alleged human rights offenders from Latin America, or cases brought in Belgium or France against offenders from Rwanda could thus be better comprehended contextually.59 This empirical reality of universal jurisdiction being exercised at the behest of victim diasporas can, according to Mégret, even be considered as normatively defensible to the extent that it becomes an ‘integral part of the normal process of welcoming refugees’ and contributes to the strengthening of a state’s multicultural society, in which newcomers’ citizenship is a function of the host state demonstrating empathy and solidarity.60 Thus, by exercising universal jurisdiction, states may not (just) show international solidarity,

58 Mégret (n. 20), 99. 59 In the French case of Munyeshyaka, for instance, the accused—who was charged for his involvement in the 1994 Rwandan genocide—had sought refuge in France, where some of his victims also lived. On that ground, Sadat considered the exercise of universal jurisdiction to be not ‘exorbitant’. See Sadat (n. 35), 558 (also noting that the presence requirement, used to trigger universal jurisdiction in France, ‘served to insulate France from some of the political controversies surrounding the use of universal jurisdiction in cases with fewer connections to the forum’). Munyeshyaka was acquitted in 2014. For a description of the case, see Trial International, ‘Wenceslas Munyeshyaka’ (2016), https://trialinternational.org/latest-post/wenceslas-munyeshyaka/. The presence of a victim diaspora (in the case of Rwandan victims of genocide present in France organized as the Collectif des Parties Civiles pour le Rwanda) is not the only explanatory variable for the exercise of universal jurisdiction in a particular case, however. It may happen that state authorities discover that a person may have committed international crimes in the context of investigations into another crime. The French case of Simbikangwa is instructive in this respect. This Rwandan genocide suspect had fled to the French Indian Ocean island of Mayotte, where his true identity was revealed in the context of an investigation into false identity documents. See Trouille (n. 44), 196. 60 Mégret (n. 20), 108–14, e.g., stating (at 111) that ‘the criminal law becomes a way of constituting the political’. From this perspective, the exercise of universal criminal jurisdiction can be regarded as benefiting the national interest (at 114) (‘the exercise of U[niversal] J[urisdiction] should be seen not as a net liability for the state’).

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Cosmopolitan Jurisdiction and the National Interest 223 but also, and more so in fact, vindicate their own national interest in building a stable society in which immigrants feel welcome and integrated. Integrating immigrants from diasporas is, however, only one national interest that can be served by the exercise of universal jurisdiction. Arguably, any national interest that is grounded in political community and identity could qualify as an empirical trigger for the exercise of ‘common interest’-based jurisdiction, as well as a normative reason for action. Thus, as Itamar Mann has noted, the Jerusalem District Court in Eichmann, when it established its universal jurisdiction, acted not only as a ‘Court of Humanity’, vindicating the interests of the international community pursuant to the universality principle, but also as a ‘Court of Violence’, exercising the state’s (i.e. Israel’s) right to punish Eichmann on the grounds of the ‘special connection the State of Israel has with such crimes, seeing that the People of Israel—the Jewish People—constituted the target and the victim of most of the crimes in question’.61 The question then arises: what national political interests appropriately trigger the exercise of universal jurisdiction?62 Mann refrains from giving an all-encompassing definition of ‘appropriateness’, but still, the examples which he gives of appropriate and inappropriate interests undergirding actual prosecutions give some guidance. Thus, Kenyan prosecutors may be justified in prosecuting Somali pirates under the universality principle insofar as piracy adversely affects Kenya’s access to waterways. In contrast, insofar as these prosecutions may have been outsourced by Western states unwilling to shoulder the jurisdictional burden and instead paying other bystander states to prosecute the pirates on the basis of universal jurisdiction, questions as to the appropriateness of these prosecutions can be raised.63 Mann voices similar concerns regarding the appropriateness of Belgium’s issuance of a warrant for the arrest of then Minister of Foreign Affairs of the Democratic Republic of the Congo, Abdoulaye Yerodia (2000), on charges of incitement to genocide, a crime amenable to universal jurisdiction, even in absentia pursuant to Belgian law applicable at the time (a warrant which sparked the Arrest Warrant case before the International Court of Justice (ICJ)).64 Echoing the separate opinion of ICJ Judge ad hoc Bula-Bula in the Arrest Warrant case,65 as well as David Luban’s writings on crimes against humanity,66 Mann suggests that Belgium’s prosecution should be precluded because of Belgium’s ‘bloody history’ as the former colonial power in the Congo.67 That former colonizers have no ‘moral right’ to exercise universal criminal jurisdiction over former colonies has also informed the African 61 Cited in Itamar Mann, ‘The Dual Foundation of Universal Jurisdiction: Towards a Jurisprudence for the “Court of Critique” ’, Transnational Legal Theory 1 (2010): 485–521, 503. 62 Ibid., 517. 63 Ibid., 519. 64 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ 1. 65 Case Concerning the Arrest Warrant of 11 April 2000 (DRC v Belgium), Judgment of 14 February 2002, individual opinion Judge Bula-Bula. Note that the Court itself did not address the legality or appropriateness of the exercise of universal jurisdiction, limiting itself to the question of the international immunity ratione personae of an incumbent Minister of Foreign Affairs. 66 David Luban, ‘A Theory of Crimes Against Humanity’, Yale Journal of International Law 29 (2004): 85–167. 67 Mann (n. 61), 518.

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224 Cedric Ryngaert Union’s position on universal jurisdiction,68 as well as on the International Criminal Court (ICC) for that matter. 69 The latter position is understandable from the perspective of (or a variation of) the ‘clean hands’ doctrine.70 Nonetheless, without wanting to press the argument too far, it is debatable whether Western states should perforce be precluded from sitting in judgment of heinous crimes committed in their former colonies, in light of transgressions committed at the time. Precluding Western states’ reliance on universality may in fact foreclose valuable opportunities for the exercise of universal jurisdiction, as large diaspora communities—the actors precisely triggering universal jurisdiction—live on the territory of their former colonial masters. In fact, it could be argued that precisely because Western states have historically oppressed colonial peoples, with all the attendant consequences, such as a legacy of weak governance and armed conflict, they have a moral interest in atoning for their past sins by assisting their former colonial possessions, including by exercising universal jurisdiction over crimes committed by individuals in the latter. Such prosecutions under the universality principle may not only contribute to the entrenchment of accountability and the rule of law in former colonies. They also serve the purpose of reconstituting the polity of the former colonial oppressor as a polity that no longer defines itself as a victimizer, but as an emancipator of those victimized by the governance gaps left when the colonial power departed.71 68 African Union Model Law on Universal Jurisdiction: an African Response to Western Prosecutions based on the Universality Principle (2012), http://www.ejiltalk.org/wp-content/uploads/2012/08/ AU-draft-model-law-UJ-May-2012.pdf> last accessed 31 January 2018. 69 See African Union Withdrawal Strategy Document, 12 January 2017, https://www.hrw.org/sites/ default/files/supporting_resources/icc_withdrawal_strategy_jan._2017.pdf (calling for mass withdrawal from the ICC). 70 Diversion of Water from the River Meuse (Netherlands v Belgium) [1937] PCIJ (Series A/B) No. 70, 4. 77. The ‘clean hands’ doctrine as applied by international courts stems from the common law of Equity (including the maxim ‘s/he who comes to Equity must do so with clean hands’) and the closely related maxim in Roman law nullus commodum capere potest de iniuria sua propria. This doctrine prevents a state from arguing that the acts of another state is unfair if the complaining state has previously acted improperly. See Stephen M. Schwebel, ‘Clean Hands Principle’, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, 2nd edn (Oxford: Oxford University Press, 2013). 71 Marxist scholarship and scholarship in the tradition of Third World Approaches to International Law (TWAIL) has been decidedly critical towards the exercise of universal criminal jurisdiction, on the grounds that it perpetuates Western hegemony. See Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford: Oxford University Press, 2016), 86 (discussing the law of jurisdiction, including universal jurisdiction). Also, scholarship in the critical legal studies tradition has drawn attention to the dark sides of at first sight well-meaning humanitarianism. See e.g. David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton: Princeton University Press, 2005). Some of this scholarship may however be overly statist, and pay insufficient attention to the rights and interests of individuals oppressed by their own government, rather than Western governments. It is argued in this chapter that, under certain circumstances, jurisdictional action by Western states can emancipate such individuals by vindicating their rights. For TWAIL in relation to the protection of human rights, see Sara Seck, ‘Conceptualizing the Home State Duty to Protect Human Rights’, in Karin Buhman, Mette Morsing, and Lynn Roseberry (eds.), Corporate Social and Human Rights Responsibilities: Global Legal and Management Perspectives (Basingstoke: Palgrave Macmillan, 2010), 25–51. For TWAIL in relation to environmental harm caused by corporations, see Sara Seck, ‘Transnational

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Cosmopolitan Jurisdiction and the National Interest 225 The change in national identity resulting from former colonial powers’ prosecutions under the universality principle could well be defined as an appropriate national interest, and may have informed actual jurisdictional practices. Bystander states’ assumption of a role, on the basis of the universality principle, as emancipator of foreign peoples may even be seen as a means to atone for purely domestic historical injustices, or pave the way for the prosecution (whether domestic or extraterritorial) of these injustices. Spain’s universality-informed prosecutions of Latin American human rights violators are instructive in this regard. As Amy Ross has argued, Spain’s engagement with the prosecution of the (alleged) genocide in Guatemala can chiefly be explained by ‘Spain’s own problematic regarding its failure to achieve justice for violations, the lack of accountability for crimes committed under Franco, and the persistence of silence and impunity’.72 This political background—Spain’s failure to come to terms with its own past—was brought into even starker relief after the adoption of a Historical Memory Law in 2007, which failed to fully break official silence on the crimes committed by the Franco regime.73 Eventually, in 2008, this emboldened Judge Baltasar Garzon of the Spanish National Court—who had earlier filed a warrant for the arrest of former Chilean Head of State Augusto Pinochet—to order the exhumation of mass graves and to charge Franco-era figures, a step which, for that matter, led to his fall from grace.74 While ‘appropriateness’ could be construed broadly, as including the wish to atone, there are obviously assertions of universal jurisdiction that should be considered ‘inappropriate’. Inappropriate assertions of jurisdiction lack civic character—for instance, because a prosecution under the universality principle has been brought with ulterior motives, such as to force regime change or isolate politically inconvenient figures. In that case, while a national interest may be present, the exercise of universal jurisdiction on which it is based may not be considered as appropriate. For instance, French Investigating Judge Bruguière’s issuance in 2006 of warrants for the arrest of nine senior Rwandan officials of the Kagame regime for their alleged role in the shooting down of the Rwandan president’s aircraft which triggered the 1994 Rwandan genocide, may be suspect, not just because it was technically based on the in absentia exercise of passive personality-based jurisdiction, but more importantly because of a lingering suspicion Business and Environmental Harm: A TWAIL Analysis of Home State Obligations’, Trade, Law and Development 3 (2011): 164–202. 72 Ross (n. 35), 367. 73 Ley de Memoria Historica or Ley por la que se reconocen y amplian derechos y se establecen medidas en favor de quienes padecieron persecucion o violencia durante la Guerra Civil, Law 52/2007 of 16 December (Spain). 74 Ross (n. 35), 369–70. Note that Argentine courts, in a remarkable turning of the tables, later invoked the universality principle to investigate the Franco regime’s crimes. Associated Press in Madrid, ‘Human Rights Abusers in Franco-era Spain Could Be Tried in Argentina’, The Guardian, 2 November 2014, https://www.theguardian.com/world/2014/nov/02/buenos-aires-spain-franco-argentina. An Argentinian investigating judge issued arrest warrants against twenty former officials of the Franco era, but Spanish authorities refused to arrest the suspects, citing the statute of limitations and an amnesty law. Luciana Bertoia, ‘Spain Rejects Franco-Era Extradition’, Buenos Aires Herald, 26 April 2014, http://www.buenosairesherald.com/article/157940/spain-rejects-francoera-extradition.

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226 Cedric Ryngaert that France was somehow involved in the genocide, or at least did not do enough to prevent it. Because of France’s possible complicity in the Rwandan genocide, France may not have come to the prosecution with clean hands, and thus the exercise of jurisdiction in the case should be considered inappropriate.75

IV. Concluding Observations Cosmopolitan, unilateral jurisdiction is jurisdiction exercised over conduct that shocks the conscience of mankind. Every state could be considered to have a nexus with such conduct, thus grounding a right, or even a moral imperative, to exercise (universal) jurisdiction, typically over international crimes, gross human rights violations, or environmental abuses.76 In practice, such pure cosmopolitan jurisdiction is hardly exercised. Scarce resources, fear of retaliation or reciprocity, and lack of local interest in global issues may cause states (legislators, regulators, and courts) to forego assertions of cosmopolitan jurisdiction, unless a ‘national interest’ can be identified. This is a relatively well-documented empirical phenomenon. In this chapter, the actual practice of universal criminal jurisdiction in particular has been examined. It has been demonstrated that ‘abstract’ cosmopolitanism does not serve as an incentive to establish jurisdiction.77 Rather, this incentive is constituted by a more concrete nexus with the state, an ‘encounter’ of the state with victims of injustice, or an interest of the state.78 This idea need not be sobering. Instead, it points to the empowering, real-life possibilities of a state exercising jurisdiction in the common 75 Sadat (n. 35), 562. Sadat added, however, that ‘[o]ne can also make a strong counter-argument to the effect that if one disaggregates the notion of the “state”, and a state has an independent judiciary, the unclean-hands doctrine should have no application’. It happened that the French investigating judges succeeding to Bruguière found that the missiles were found to be fired from positions controlled by the Rwandan Armed Forces, not by Kagame’s RPF. See Tanguy Berthemet, ‘Rwanda: les vérités gênantes des juges français’, Le Figaro, 12 January 2012, http://www.lefigaro.fr/international/2012/01/12/0100320120112ARTFIG00456-rwanda-les-verites-genantes-des-juges-francais.php. French proceedings regarding the attack were relaunched in 2016, however. See ‘Rwanda: l’enquête sur l’attentat contre Habyarimana relancée en France’, Le Parisien, 7 October 2016, http://www.leparisien.fr/international/rwanda-lenquete-sur-l-attentat-contre-habyarimana-relancee-en-france-07-10-2016-6184261.php. 76 See on the link between the erga omnes obligation to provide reparations for gross human rights violations and the right, or even duty, for states to exercise universal civil (tort) jurisdiction: Andreas Bucher, ‘La Compétence universelle civile’, Recueil des Cours de l’Académie de droit international de La Haye 372 (2014): 9–127. 77 Mégret (n. 20), 115 (arguing that the forum state ‘would tend to typically ignore more virtual assertions of in absentia jurisdiction that seem to be based largely on some quixotic concept of abstract justice not based on any meaningful encounter’). 78 See on hybrid motivations for states to exercise extraterritorial jurisdiction: Ireland-Piper (n. 37), 10 (‘Nation states exercise extraterritorial jurisdiction for three main reasons: first, because they are legally obliged to do so; second, because they are morally obliged to do so; and, third, because it suits their own political or economic agendas. These motivations are not exclusive of one another, and it is likely that all three are present in most exercises of extraterritorial jurisdiction.’). See also Pierik and Werner (n. 7),

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Cosmopolitan Jurisdiction and the National Interest 227 interest in ways that at the same time strengthen or reconstitute the territorially bounded political community which the state is supposed to serve, and to whose members (both nationals and non-nationals) it owes fiduciary obligations given the relational character of state sovereignty.79 Ultimately, the idea is a reflection of the very nature of international law, which oscillates between cosmopolitanism and parochialism,80 between the celestial and the physically immediate.81 286–7 (notions of cosmopolitan justice may foster the pursuit of what states perceive to be in their interest, drawing particular attention to the mixture of national security with imperial agendas). 79 Evan Fox-Decent and Evan J. Criddle, Fiduciaries of Humanity: How International Law Constitutes Authority (Oxford: Oxford University Press, 2016), 13. 80 Mortimer Sellers (ed.), Parochialism, Cosmopolitanism and the Foundations of International Law (Cambridge: Cambridge University Press, 2012). See Ireland-Piper (n. 37), 27 (‘the exercise of extraterritorial jurisdiction provides a means by which states can reconcile parochialism with cosmopolitanism. It is a form of transnationalism: a hybrid creature born of both international and domestic law.’). 81 Geoff Gordon and Wouter Werner, ‘Between the Dog and the Divine: Resistance and Conventionalism in Cosmopolitanism’, Utrecht Law Review 13 (2017): 28–36.

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Chapter 11

J u r isdictiona l Im m u n itie s of the State i n I n ter nationa l L aw Paul Gragl

I. The Concept of State Immunity: History, Functions, and Philosophy229 II. The Jurisdictional Immunities Case

II.1. Recent Developments in International Jurisprudence II.2. Germany v Italy: State Immunity before the ICJ II.2.a. Factual Background II.2.b. The Decision II.2.b.i. Territory and Torts II.2.b.ii. The Gravity of the Violations, Ius Cogens Norms, and the Question of Alternative Remedies II.2.b.iii. The Villa Vigoni and the Enforcement of Greek Decisions II.3. The Judgment within the Broader Legal Framework: A Defence

231 231 233 233 234 235 235 237 238

III. The Immunity Controversy: From State-Centrism to Individualism?

241

IV. State Immunity and the Relationship between International and National Law

247

III.1. International Law as a System of Values: Formation Interrupted 242 III.2. Hierarchy of Norms and Ius Cogens244 246 III.3. Concluding Remarks

V. Conclusion

249

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Jurisdictional Immunities of the State 229

I. The Concept of State Immunity: History, Functions, and Philosophy Despite its elusive and protean nature, jurisdiction in international law constitutes, at its broadest, a positive concept, somehow relating to state sovereignty which, in turn, gives rise to the claim to exercise powers and to speak in the name of the law. In this vein, the relevant international legal rules on jurisdiction serve the crucial function of principally delimiting state regulatory authority to its own respective territory or citizens, thereby excluding other states from this very claim to power.1 Conversely, the reverse side to jurisdiction is the negative concept of jurisdictional immunity which denies a state this very claim to fully exercise its powers over other states.2 Jurisdiction and immunity thereby act like communicating vessels to the extent that any grant of immunity involves declining to exercise jurisdiction, whilst any denial of immunity results in the assertion of jurisdiction.3 The importance of state immunity is rooted in the fact that the international legal order lacks an effective and compulsory centralized enforcement mechanism, which is why domestic courts continue to play a pivotal role in implementing and enforcing international law.4 The concept of state immunity, however, represents a considerable impediment to domestic judicial scrutiny over internationally wrongful acts and hence the accountability of states in national fora.5 Under classic international law, States are the main actors and legal subjects in international relations, and since they are coeval with the birth of the international society,6 they also enjoy—in the parlance of the 1 See e.g. Cedric Ryngaert, Jurisdiction in International Law, 2nd edn (Oxford: Oxford University Press, 2015), 5–6; Shaunnagh Dorsett and Shaun McVeigh, ‘Questions of Jurisdiction’, in Shaun McVeigh (ed.), Jurisprudence of Jurisdiction (London: Routledge, 2007), 3; Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84 (2014): 188, 188–92. 2 In this regard, please note that this chapter only examines the immunity of states as international legal subjects; it does not concern itself with the immunities of heads of state and governments. 3 Alexander Orakhelashvili, ‘State Immunity from Jurisdiction between Law, Comity, and Ideology’, in Alexander Orakhelashvili (ed.), Jurisdiction and Immunities in International Law (Cheltenham: Edward Elgar, 2015), 151. He also notes, however, that this image is not entirely correct since the question of jurisdiction is antecedent to that of immunities, and that ‘it is only where a State has jurisdiction under international law in relation to a particular matter that there can be any question of immunities in regard to the exercise of that jurisdiction’; see Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) [2002] ICJ Rep. 19, para. 46. 4 See the theoretical foundations of this dédoublement fonctionnel or ‘role-splitting’ in Georges Scelle, Précis de droit des gens: Principes et systématique, I: Introduction, le milieu intersocial (Paris: Sirey, 1932), 43. 5 Paolo Gaeta, ‘Immunity of States and State Officials: A Major Stumbling Block to Judicial Scrutiny?’, in Antonio Cassese (ed.), Realizing Utopia: The Future of International Law (Oxford: Oxford University Press, 2012), 229. 6 Antonio Cassese, ‘States: Rise and Decline of the Primary Subjects of the International Community’, in Bardo Fassbender and Anne Peters (eds,), The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012), 50.

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230 paul gragl state-centred sovereigntists Jean Bodin, Thomas Hobbes, and G. W. F. Hegel7—absolute sovereignty and immunity. States are equal and have no authority over each other, and thus, in order to enable them to carry out their public functions effectively and free from disruptions, they are principally immune from legal action before the courts of another state (along the maxim of par in parem non habet imperium).8 Upon the arising of a dispute, a state may consequently plead its immunity under international law to prevent adjudication without its consent and thereby evade any judicial responsibility before foreign domestic courts.9 Given this development of the law of state immunity through domestic judicial decisions and the absence of an international treaty of universal participation dealing with this matter, state immunity is usually considered to be a principle of customary international law.10 In contrast to that, the two main codification projects on the law of state immunity remain mostly ineffective: whereas the 2004 UN Convention on Jurisdictional Immunities of States and their Property is not in force yet because it has, so far, not attracted the required number of ratifications,11 the European Convention on State Immunity is in force, but only for eight states.12 It is nonetheless remarkable that due to the increasing interrelationship and interdependence between states and the rise of international human rights, absolute sovereign immunity gradually eroded into mere relative sovereign immunity,13 according to which states certainly remain equal inter se, but are subject to international law.14 Thus only the exercise of sovereign authority in the sense of ‘political activities’15 (i.e. foreign and military affairs, legislation, the exercise of police power, and the administration of justice)16 is—as acta iure imperii—exempt from the jurisdiction of foreign domestic courts. Pure commercial activities, however, in which states act as ordinary legal 7 See e.g. Ernest K. Bankas, The State Immunity Controversy in International Law (Berlin: Springer, 2010), 1–12. 8 See in particular the arguments voiced in the United States Supreme Court case, The Schooner Exchange v McFaddon, 11 US 116 (1812). 9 Hazel Fox, ‘State Immunity and the International Crime of Torture’, European Human Rights Law Review [2006]: 142, 144. See therefore the decision of the Supreme Court of the Netherlands in The Netherlands v Nuhanovic, Decision No. 12/03324, 6 September 2013, in which a court of the Netherlands held the Netherlands responsible for the wrongful conduct of its peacekeeping troops. Thus no foreign state was directly involved. 10 Xiaodong Yang, State Immunity in International Law (Cambridge: Cambridge University Press, 2012), 35. 11 Adopted by UN General Assembly Resolution 59/38, A/RES/59/38, 2 December 2004; see Art. 30(1) of the Convention, requiring thirty instruments of ratification, acceptance, approval, or accession; at the time of writing, only twenty-two such instruments had been deposited. 12 ETS No. 074; entry into force on 11 June 1976. 13 Leaving aside the issue that the idea of relative sovereignty involves a contradictio in adiecto: the original sense of sovereignty is that of supreme power, but if power is limited by law, it cannot be supreme. Thus, to use the term ‘relative’ in this context is to distort ‘sovereignty’s’ proper and original sense, and therefore the concept of sovereignty should be best abandoned altogether; see Hans Kelsen, ‘Théorie du droit international public’, Recueil des cours 84 (1953-III): 1, 83–5; Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (Tübingen: Mohr-Siebeck, 1920), 2, 7–8, 85–101. 14 See e.g. Jasper Finke, ‘Sovereign Immunity: Rule, Comity, or Something Else?’, European Journal of International Law 21 (2011): 853, 858–61. 15 Hoffmann v Dralle, Austrian Supreme Court, 1 Ob 171/50, 10 May 1950. 16 BVerfGE 16, 27—Iranische Botschaft, German Federal Constitutional Court; 30 April 1963, para. 162.

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Jurisdictional Immunities of the State 231 persons, are—as acta iure gestionis—not immune from foreign domestic jurisdiction.17 Nevertheless it needs to be mentioned that this exception to immunity only concerns immunity from adjudication, whilst immunity from actual enforcement remains largely absolute, and coercive measures to a state and its property continue to remain subject to the respective state’s consent.18 The intricate law of state immunity continues to puzzle jurists, mainly because its stated rationales are sometimes legal, and sometimes political or ideological.19 In accordance with the overall rationale of this Handbook, this chapter is intended to give a critical overview of this topic, and to hopefully inspire further research. Therefore, it will examine the main and most pressing legal issues concerning jurisdictional immunities of the state in international law20 and clarify and critically discuss these puzzles for the reader. To this end, it will first illustrate the most recent international decision on the scope of state immunity—namely, the Jurisdictional Immunities case of the International Court of Justice (ICJ) (Section II), and subsequently assess the most prevalent problems in this context: first, whether state immunity should be upheld as a rule of procedural law or whether it should give way to substantive questions in terms of human rights violations and ius cogens norms (Section III); and lastly, which problems emerge from immunity cases for the relationship between international and national law. By way of a crude oversimplification, one could argue that the entire debate on state immunity boils down to the questions of whether immunity is merely relative or absolute, and whether the state needs to subordinate itself to the international legal order for the sake of global peace or whether it retains an untouchable core of sovereignty to assert itself as the actual centre of power on the international level.21

II. The Jurisdictional Immunities Case II.1. Recent Developments in International Jurisprudence As briefly mentioned earlier, the law of state immunity has undergone enormous changes in both doctrine and practice during the last decades, seeing a gradual relaxation from absolute to relative immunity. It is, however, symptomatic of this subject 17 See in general the overview in Hazel Fox and Philippa Webb, The Law of State Immunity, 3rd edn (Oxford: Oxford University Press, 2013), 399–411. 18 Ibid., 23–4 and 479–534. See also Jurisdictional Immunities (Germany v Italy; Greece Intervening) [2012] ICJ Rep. 99, para. 113. 19 Orakhelashvili (n. 3), 155. 20 For further and more detailed analyses, to date the most comprehensive commentaries concerning state immunity can be found in Fox and Webb (n. 17); Yang (n. 10); and Bankas (n. 7). 21 See Fernando R. Tesón, A Philosophy of International Law (Boulder, CO: Westview Press, 1998), 8; Jochen von Bernstorff, ‘Georg Jellinek and the Origins of Liberal Constitutionalism in International Law’, Goettingen Journal of International Law 4 (2012): 659, 664–6.

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232 paul gragl area that whereas domestic jurisprudence in this respect is abundant,22 decisions by international courts and tribunals are rather scarce. This finding allows for two closely connected interpretations which might explain this scarcity: first, domestic courts are aware that in granting immunity to foreign states they are applying a principle of international law;23 and second, by doing so, they not only comply with international norms, but can also ensure good international relations through reciprocity as well as comity.24 We should nevertheless not disregard the fact that this domestic judicial practice has long been a major component of the development of the international law of state immunity.25 Yet the focus of this contribution is not on domestic practice, but international jurisprudence. As the first example, it took quite some time before the European Court of Human Rights (ECtHR) was faced for the first time with a normative conflict between state immunity as a denial of access to courts and Article 6(1) of the European Convention on Human Rights (ECHR), granting exactly this very right to individuals. In the majority of cases, however, the Court held that denying access to a court because of the law of state immunity could not be considered a human rights violation.26 Given the status of state immunity as a general practice of states, ‘[t]he Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of state immunity’.27 In labour disputes concerning the dismissal of local employees from foreign embassies, conversely, the Court dismissed the principle of state immunity and found violations of Article 6(1) ECHR.28 Similarly, no issue regarding state immunity had come before the ICJ until 2012. Before that, the first three cases submitted to the Court only related to the immunity of individuals acting on behalf of the state, and not to the immunity of the state itself, namely the question whether an incumbent Minister for Foreign Affairs enjoys immunity from criminal jurisdiction before a foreign court;29 whether a witness summons addressed to a head of state violates international law;30 and whether the 22 It is impossible to provide an overview of domestic cases here, but for a comprehensive list see e.g. Fox and Webb (n. 17), xxi–xxxviii; and Yang (n. 10), xxxii–clii. It is interesting to note that whilst the legal basis for immunity in common law jurisdictions is mostly rooted in domestic legislation and case law (see e.g. the UK State Immunity Act 1978 and the US Foreign Sovereign Immunities Act 1976), civil law jurisdictions largely rely on international law itself; see generally Michael Byers, Custom, Power and the Power of Rules (Cambridge: Cambridge University Press, 1999), 111–14. 23 Yang (n. 10), 34–5. 24 See Al-Adsani v The United Kingdom, App. No. 35763/97, ECtHR, 21 November 2001, para. 54. 25 André Nollkaemper, National Courts and the International Rule of Law (Oxford: Oxford University Press, 2011), 10. 26 See in particular McElhinney v Ireland, App. No. 31253/96, ECtHR, 21 November 2001; Fogarty v The United Kingdom, App. No. 37112/97, ECtHR, 21 November 2001; Grosz v France, App. No. 14717/06, ECtHR, 16 June 2009. 27 Al-Adsani v The United Kingdom (n. 24), para. 55. 28 See in particular Cudak v Lithuania, App. No. 15869/02, ECtHR, 23 March 2010; Sabeh El Leil v France, App. No. 34869/05, ECtHR, 29 June 2011; Wallishauser v Austria, App. No. 156/04, ECtHR, 17 July 2012. 29 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (n. 3). 30 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] ICJ Rep. 177.

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Jurisdictional Immunities of the State 233 extent to which a delay in a treaty obligation to exercise universal jurisdiction over a former head of state accused of torture constitutes a breach of international law.31 Those cases certainly involved issues of derived immunity, but not the law of state immunity per se. Therefore, the first and so far only ‘pure’ state immunity case examined and decided by the ICJ remains the Jurisdictional Immunities case from 2012, which will be discussed in the subsequent section.

II.2. Germany v Italy: State Immunity before the ICJ II.2.a. Factual Background The facts of the case concern the many atrocities perpetrated by German forces during World War Two against the Italian population, including massacres of civilians and the deportation of large numbers of civilians and members of the Italian armed forces for use as forced labour.32 Furthermore, the facts also involve the Distomo massacre which took place in 1944 in Greece and resulted in the deaths of hundreds of civilians.33 Following the war, Germany fully acknowledged its responsibility for the crimes committed by the Nazi regime and arranged for a number of legal instruments to be created purporting to deal with questions of compensation, such as the Peace Treaty of 1947, the Federal Compensation Law of 1953, two agreements of 1961 relating to the ‘settlement of certain property-related, economic and financial questions’ and ‘compensation for Italian nationals subjected to National Socialist measures of persecution, and the German Federal Law of 2000 establishing a ‘Remembrance, Responsibility and Future Foundation’.34 The problem with these various compensation regimes was that certain groups of victims were excluded from benefiting from them due to very strict eligibility criteria35 and that these regimes awarded money to the Italian state rather than the individual victims.36 Consequently, the victims turned to their respective national courts for redress. In Italy, Luigi Ferrini, a civilian who had been deported and forced to work for the Nazi regime, instigated proceedings against Germany in 1998. The Italian Court of Cassation eventually ruled in 2004 that the Italian courts had jurisdiction to hear and decide a case against Germany, since the law of state immunity does not apply to international crimes and violations of ius cogens norms.37 Following further cases, the Court of Cassation confirmed in its Mantelli judgment in 2008 that the Italian courts indeed had jurisdiction over these claims brought against Germany.38 In Greece, relatives of the victims of 31 Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep. 422. 32 Jurisdictional Immunities (n. 18), para. 21. 33 Ibid., para. 30. 34 Ibid., paras. 22–6, and 52. 35 See also Associazione Nazionale Reduci and 275 Others v Germany, App. No. 45563/04, ECtHR, 4 September 2007, which the ECtHR declared inadmissible because there is no obligation on states ‘to provide redress for wrongs or damage caused prior to their ratification of the Convention’. 36 Sangeeta Shah, ‘Jurisdictional Immunities of the State: Germany v Italy’, Human Rights Law Review 12 (2012): 555, 557. 37 Ferrini v Federal Republic of Germany, Decision No. 5044/2004, 11 March 2004. 38 Mantelli and Others v Federal Republic of Germany, Order No. 14201/2004, 29 May 2008.

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234 paul gragl the Distomo massacre filed for compensation against the German state before the Greek courts and succeeded in the last resort when the Hellenic Supreme Court upheld the judgments of the inferior courts.39 Again, the decision was based on the argument that Germany had violated ius cogens norms and that by committing such acts, Germany had impliedly waived its immunity.40 When the Greek claimants attempted to enforce this judgment, however, an order by the Minister of Justice, which is usually required in order to enforce judgments against foreign states in Greece, was refused.41 For this reason, the claimants concurrently brought their claims before the ECtHR and the German courts, but both dismissed the cases as a result of Germany’s entitlement to state immunity.42 Lastly, the Greek claimants sought to have the decisions enforced by the Italian courts. Indeed, the Court of Appeal in Florence considered these decisions to be enforceable, which was subsequently also confirmed by the Italian Court of Cassation. As the target of enforcement, the Greek claimants registered a legal charge over Villa Vigoni, a property owned by the German state near Lake Como and the seat of a cultural centre intended to promote cultural exchanges between Germany and Italy.43 Given the principle of state immunity, Germany could not accept these actions and instigated proceedings before the ICJ against Italy, requesting the Court to declare that: (i) by allowing civil claims to be brought against Germany, Italy had failed to respect the jurisdictional immunity which Germany enjoys under international law; (ii) Italy had also violated Germany’s immunity by taking measures of constraint against Villa Vigoni; and (iii) it had further breached this immunity by declaring enforceable in Italy decisions of Greek civil courts rendered against Germany. In this vein, Germany asked the ICJ to declare that Italy’s international responsibility was engaged and to order the respondent to take steps by way of reparation.44

II.2.b. The Decision On 3 February 2012, the ICJ delivered its judgment, holding by a majority of twelve to three,45 that Italy had in fact violated international law on all three aforementioned accounts. The jurisdiction of the Court itself was based on the European Convention for the Peaceful Settlement of Disputes,46 to which Italy raised no objection.47 Consequently 39 Prefecture of Voiotia v Federal Republic of Germany, Case No. 11/2000, 4 May 2000. 40 Shah (n. 36), 557–8. 41 In accordance with s. 923 of the Greek Civil Procedure Code; see also Matthias Kloth, Immunities and the Right to Access to Court under Article 6 of the European Convention on Human Rights (Leiden: Brill, 2010), 95. 42 Kalogeropoulou and Others v Greece and Germany, App. No. 59021/00, ECtHR, 12 December 2002; German Federal Supreme Court, Distomo Massacre, III ZR 245/98, BGHZ 155, 279, 26 June 2003. 43 See Jurisdictional Immunities (n. 18), paras. 33–6 and 119. This charge was then, however, suspended pending the proceedings before the ICJ. 44 Ibid., paras. 15–17, 37. 45 Judges Cançado Trindade and Yusuf as well as Judge ad hoc Gaja appended dissenting opinions, Judges Bennouna, Keith, and Koroma separate opinions. 46 See Art. 1 of the Convention, requiring all High Contracting Parties to submit to the judgment of the ICJ all international legal disputes; ETS No. 23, 29 April 1957. 47 Jurisdictional Immunities (n. 18), paras. 27–51.

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Jurisdictional Immunities of the State 235 the ICJ affirmed that it had jurisdiction and noted, proceeding to the merits, that since there was no treaty on state immunity which would bind both parties, any entitlement to immunity could only be rooted in customary international law.48 Following a brief examination of the existence and extent of state immunity through state practice, the Court acknowledged that whilst there was broad agreement between Germany and Italy about the existence of the law of state immunity, they differed as to its scope, and how the law was to be applied. More precisely, although both parties accepted that states enjoy full immunity for acta iure imperii, Italy argued that torts and the most serious human rights violations were not covered by these acts.49 Let us now engage with these two issues and the question of enforcement. II.2.b.i. Territory and Torts In support of its first argument, Italy put forward the so-called ‘territorial tort principle’, which essentially states that customary international law has developed to a point where a state can no longer rely on its immunity regarding acts occasioning death, personal injury, or damage to property on the territory of the forum state, even if the act in question was performed as an actum iure imperii.50 In order to ascertain whether such a territorial tort exception to the customary rule of state immunity indeed applied to the activities of armed forces, the ICJ first concluded that neither the 1972 European Convention on State Immunity nor its UN equivalent from 2004 preclude immunity for acts committed by armed forces.51 Next, the Court analysed the potential instances of state practice as mentioned by Italy, and concluded that neither the judgments of national courts on the relevant provisions of the two Conventions52 and on state immunity for foreign armed forces itself,53 nor the existing nine pieces of domestic legislation on state immunity54 could provide evidence in support of a general territorial tort exception for the activities of foreign armed forces.55 Italy’s first argument was therefore rejected. II.2.b.ii. The Gravity of the Violations, Ius Cogens Norms, and the Question of Alternative Remedies Italy’s second argument was of a threefold nature and basically asserted that Germany could not rely on its immunity because (i) of the grave nature of the violations of 48 Ibid., para. 54. 49 Ibid., paras. 55–61. 50 For a discussion of this principle see e.g. Andrew Dickinson, ‘Germany v. Italy and the Territorial Tort Exception’, Journal of International Criminal Justice 11 (2013): 147, 152; Paul Christoph Bornkamm, ‘State Immunity against Claims Arising from War Crimes: The Judgment of the International Court of Justice in Jurisdictional Immunities of the State’, German Law Journal 13 (2012): 773, 776–7, 779. 51 Jurisdictional Immunities (n. 18), paras. 64–9. See in particular Art. 31 of the European Convention and the travaux préparatoires to Art. 12 of the UN Convention. 52 I.e. in Belgium, Ireland, Slovenia, Greece, and Poland; see Jurisdictional Immunities (n. 18), para. 68. 53 I.e. in Egypt, Belgium, Germany, the United States, the Netherlands, France, and the United Kingdom; see ibid., para. 72. 54 Namely those of the United Kingdom, Singapore, Canada, Australia, Israel, South Africa, Argentina, Japan, and the United States; see Jurisdictional Immunities (n. 18), para. 71. 55 Ibid., paras. 70–8.

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236 paul gragl international law committed by Germany; (ii) the rules of international law thereby contravened were ius cogens norms; and (iii) the exercise of jurisdiction by the Italian courts was necessary as a last resort, since the claimants had been denied all other forms of redress.56 Concerning the first sub-argument, the Court commenced its examination by drawing attention to a logical inconsistency in Italy’s argument, namely that expecting state immunity for acta iure imperii to be superseded by serious violations of international humanitarian law or human rights law would be to prejudge the merits of the claim in question.57 Despite having demonstrated this logical error in reasoning, the ICJ then went on to assess the position of customary international law on this matter. In perhaps the most controversial part of its judgment, it quickly dismissed the argument,58 as it found no such exception to state immunity in the jurisprudence of six different national jurisdictions.59 The Court also explicitly distinguished the case at hand from the Pinochet (No. 3) decision of the House of Lords60 as this other case not only involved the immunity of a former head of state in criminal proceedings, and not the immunity of the state itself in civil proceedings, but also because Pinochet directly depended on the 1984 UN Torture Convention, which was not applicable to Germany v Italy.61 Regarding the second sub-argument on the question of peremptory norms, it is certainly not surprising that the ICJ was also scathing of Italy’s ius cogens argument.62 It accepted that certain substantive rules of international humanitarian law could be considered as peremptory,63 but it did not regard them as conflicting with state immunity. Although it was evident that all parties openly recognized the violations of the law of armed conflict as illegal, state immunity and ius cogens norms simply apply to different matters: the rules on immunity are procedural in nature, and since they only address the question of jurisdiction and not whether the conduct in question was lawful or not, they cannot violate the substantive rules of ius cogens.64 Alternatively put, state immunity only affects how substantive rules are to be given effect, but it does not affect the substance of the duties of states itself.65 Lastly, the ICJ also made clear that the same applies to the 56 Ibid., para. 80. 57 Ibid., para. 82. See also Shah (n. 36), 565. 58 J. Craig Barker, ‘International Court of Justice: Jurisdictional Immunities of the State (Germany v. Italy) Judgment of 3 February 2012’, International and Comparative Law Quarterly 62 (2013): 741, 747. 59 Jurisdictional Immunities (n. 18), para. 85, namely in Canada, France, Slovenia, New Zealand, Poland, and the United Kingdom. 60 R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty International Intervening) (No. 3) (1999) 2 All ER 97. 61 Jurisdictional Immunities (n. 18), para. 87. 62 Barker (n. 58), 748. 63 E.g. the rules that prohibit ‘the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of war to slave labour’; see Jurisdictional Immunities (n. 18), para. 93. See also Andrea Bianchi, ‘Human Rights and the Magic of Jus Cogens’, European Journal of International Law 19 (2008): 491, 502, 505. 64 Jurisdictional Immunities (n. 18), paras. 92–7. See also Alexander Orakhelashvili, ‘Case Note: Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening)’, American Journal of International Law 106 (2012): 609, 611–12; and Jones v Saudi Arabia [2006] UKHL 26, paras. 24, 44. 65 Shah (n. 36), 567.

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Jurisdictional Immunities of the State 237 duty to make reparation that ‘exists independently of those rules which concern the means by which it is affected’.66 With respect to the third and last sub-argument and Italy’s plea, that redress for the victims was only possible by disregarding Germany’s state immunity, the Court did indeed reproach the applicant for denying compensation to certain groups of victims, emphasizing that its immunity did not affect its responsibility to make reparation.67 But even though ‘immunity does not equate impunity’,68 the ICJ could not determine any international legal norm which made the enjoyment of immunity dependent on the existence of ‘effective alternative means of securing redress’.69 It is of course beyond doubt that the decision on German immunity has the effect of precluding redress for some victims, but it is also clear that this issue could be resolved by way of further negotiations between the two states concerned.70 To conclude, the Court stated that even the cumulative effect of the nature of Italy’s claims contained in these three sub-arguments would not lend ‘support to the proposition that the concurrent presence of two, or even all three, of these elements would justify the refusal by a national court to accord to a respondent state the immunity to which it would otherwise be entitled’.71 Consequently, Italy’s second argument was rejected as well. II.2.b.iii. The Villa Vigoni and the Enforcement of Greek Decisions Given Italy’s position not to object to a Court order to bring the measure regarding the legal charge over the Villa Vigoni,72 the ICJ also dealt rather quickly with this issue. Following the observation that state immunity from enforcement concerning their property situated on foreign territory goes further than mere jurisdictional state immunity before foreign courts, Italy’s breach of international law was easily determined, especially due to the use of the Villa Vigoni for entirely non-commercial government purposes (i.e. acta iure imperii).73 Similarly, it was not difficult for the Court to determine that the ‘Italian courts which declared enforceable in Italy the decisions of Greek courts rendered against Germany have violated the latter’s immunity’, especially given that the decision to enforce was itself the exercise of a jurisdictional power by the Italian courts to a decision on the merits of the case.74 Hence Italy’s third argument was also rejected.

66 Jurisdictional Immunities (n. 18), para. 94. 67 Ibid., para. 99. 68 See Amrita Mukherjee, ‘Rethinking Justice: Individual Criminal Responsibility, Immunity and Torture’, in Charles Sampford, Spencer Zifcak, and Derya Aydin Okur (eds.), Rethinking International Law and Justice (London: Routledge, 2015), 121–2; Lorna McGregor, ‘Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’, European Journal of International Law 18 (2007): 903, 907, 913. 69 Jurisdictional Immunities (n. 18), para. 101. 70 Ibid., para. 104. 71 Ibid., para. 106. 72 Ibid., para. 38. 73 Ibid., paras. 113–20. See also the strict wording of Art. 19 of the 2004 UN Convention. 74 Jurisdictional Immunities (n. 18), paras. 127–8, 131. See also Barker (n. 58), 749.

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II.3. The Judgment within the Broader Legal Framework: A Defence Before the judgment will be analysed from a more critical perspective in Section III of this chapter, it will first be placed and examined within the broader framework of the international legal order and how it fits within this framework. In other words, the following paragraphs represent a modest and doctrinal defence of the ICJ’s decision in the context of classic international law. It is generally held that the judgment consolidates the hitherto traditional mainline view on state immunity within a consensual positivist structure. From a purely doctrinal perspective, the judgment is based on a very detailed academic analysis and is absolutely correct, confirming that state immunity constitutes an established rule rather than the exception to the rule that a state has jurisdiction over all acts committed on its territory.75 Moreover, the strong majority decision of twelve to three76 also demonstrates that the conflict between ius cogens norms and state i mmunity needs to be seen as definitely settled for an indeterminate period of time. This will of course impede the long-term development of pertinent customary international law, but the decision nonetheless provides for legal certainty, and this is exactly where its significance rests.77 In particular Christian Tomuschat who also acted as counsel for Germany in the proceedings,78 presents various plausible and convincing arguments in support of the actual outcome of the dispute. To begin with, his answer to this judgment’s decisive question—namely whether exceptions to the strict law of state immunity have in fact developed qua customary law79—is in the negative. The position of the Italian and Greek courts in cases such as Ferrini and Voiotia was flawed from the outset, since customary law can be compared to a slow-moving convoy, which does not proceed by abrupt leaps.80 The potential existence of ‘instant’ custom is of course an interesting notion,81 but ultimately untenable in this case for two reasons. On the one hand, from a legaltheoretical point of view, the very concept of ‘instant custom’ boils down to a contradictio

75 Orakhelashvili (n. 64), 612; Barker (n. 58), 750. 76 See n. 45. See also narrow majority of nine to eight in Al-Adsani v The United Kingdom (n. 24). which was also acknowledged by the ICJ in Jurisdictional Immunities (n. 18), para. 90. 77 Matthias Kloth and Manuel Brunner, ‘Staatenimmunität im Zivilprozess bei gravierenden Menschenrechtsverletzungen’, Archiv des Völkerrechts 50 (2012): 218, 238, 241. 78 See Jurisdictional Immunities (n. 18), para. 13. 79 Barker (n. 58), 750. 80 Christian Tomuschat, ‘The Case of Germany v. Italy before the ICJ’, in Anne Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (Leiden: Brill, 2015), 88. 81 Roberto Ago, ‘Science juridique et droit international’, Recueil des cours 90 (1956-II): 849, 932 et seq.; Bin Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ Indian Journal of International Law 5 (1965): 23, 35–50.

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Jurisdictional Immunities of the State 239 in adiecto.82 Like the United States’ claim to the continental shelf,83 initiatives for the development of new custom are certainly necessary, but they do not create new law overnight; and like streets that are built upon well-trodden paths, customary international law is dependent on such processes in which other nations intervene by either following suit, by rejecting the innovation, or by reserving their response until a later point in time.84 On the other hand, from a practical perspective, even if one concedes to the existence of instant custom, the threshold for its acceptance would be even higher than for ‘regular’ customary law, as it would require very strong evidence that states unanimously regarded the new practice as legally binding.85 In other words, the emergence of instant custom is only possible if a universal consensus among states on the existence of a certain rule can be identified—for instance, by way of unanimous adoption of a UN r esolution.86 But this is definitely not the case in an area as sensitive as jurisdictional immunities of the State, and hence both opinio iuris and consuetudo remain necessary for the formation of customary law. The Italian and the Greek courts, however, evidently ignored this practice element, which prevented them from recognizing that there is no practice that—if it had existed—would have allowed them to ignore the law of state immunity.87 And since there was no practice, there could not be any opinio iuris either. Lastly, seeing that the decisions of the lower Greek courts had effectively been overturned by a later judgment of the Greek Special Supreme Court,88 it was the Italian Court of Cassation which fought a lone war against the law of state immunity.89 Through this avenue, no new customary international law—let alone instant customary law—can develop. Second, it is doctrinally absolutely correct that ius cogens does not have the effect of superseding the procedural immunity of states from the domestic jurisdiction of foreign states.90 Ius cogens norms are substantive in nature and therefore regulate positive state conduct. They aim at averting the evil consequences which specific acts or activities 82 See e.g. Michael Akehurst, ‘Custom as a Source of International Law’, British Yearbook of International Law 47 (1975): 1, 31; Jonathan I. Charney, ‘International Agreements and the Development of International Law’, Washington Law Review 61 (1986): 971, 990–6; Godefridus J. H. van Hoof, Rethinking the Sources of International Law (Deventer: Kluwer, 1983), 86. 83 See e.g. Offical Documents, ‘United States: Proclamation by the President with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf ’, American Journal of International Law—Supplement 40 (1946): 45–6. 84 Bruno Simma, Das Reziprozitätselement in der Entstehung des Völkergewohnheitsrechts (Munich: Fink, 1970), 55; Tomuschat (n. 80), 88–9. 85 Martin Dixon, International Law, 7th edn (Oxford: Oxford University Press, 2013), 36. 86 Bin Cheng, ‘On the Nature and Sources of International Law’, in Bin Cheng (ed.), International Law: Teaching and Practice (London: Stevens & Sons, 1982), 222–9; Cheng (n. 81), 35–40; Niels Petersen, ‘Customary Law without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation’, American University International Law Review 23 (2008): 275, 281. 87 Jurisdictional Immunities (n. 18), paras. 72–5. 88 Margellos and Others v Federal Republic of Germany, Case No. 6/2002, 17 September 2002. 89 Tomuschat (n. 80), 89. 90 Barker (n. 58), 751.

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240 paul gragl would entail, but they do not specify what particular consequences are to be drawn in case such rules have been violated.91 In other words, peremptory norms are norms from which no derogation is permitted according to Article 53 of the Vienna Convention on the Law of Treaties (VCLT), but the application of a procedural rule in itself does not amount to a derogation from substantive rules of ius cogens. The plea of state immunity is made before the merits of the case are being heard, and thus, as a procedural rule, it may hinder the enforcement of the peremptory norm in question, but it does not derogate from its content.92 As an analogy, Stefan Talmon mentions the example of a 17-year-old person who committed the crime of genocide. Yet not even the commission of this worst-of-all crimes can call into question the procedural bar to the International Criminal Court’s jurisdiction over persons under the age of 18.93 Third, we should consider the consequences of the law of state immunity giving way to other rules of international law, however crucial they may be in substance. In terms of legal policy, individualizing the settlement of war damages by permitting individual actions to be brought could lead to a total judicial impasse, wherein thousands or even more of individual claims would require adjudication. Furthermore, one should not underestimate the empirical complexities involved in such cases, especially when it comes to the securing of evidence decades after the actual crime has been committed, notwithstanding any statutes of limitation.94 Yet once permitted and without any precisely defined eligibility and standing criteria, it could only be a matter of time until such individual claims could transform into an actio popularis to enforce erga omnes obligations, thereby granting standing to virtually everybody and bringing the judicial system to a complete standstill.95 The question therefore is whether national courts really are the right institutions to adjudicate upon these cases. Seeing that international law is a legal order characterized by the principle of reciprocity, the danger of reopening World War Two at the judicial level would be tantamount to the legal bursting of a dam. As a consequence, undermining the law of state immunity would not really contribute to the settlement of disputes and the preservation of peace by diplomatic means. And at the end of the day, we should not be oblivious to the fact that state immunity remains a necessary precondition for international relations. If a state were to be in constant worry of being subjected to a foreign judiciary without its consent, then no state would ever allow its organs, companies, or financial assets to leave its own territory.96

91 Tomuschat (n. 80), 89–90; Fox and Webb (n. 17), 18–21. 92 Stefan Talmon, ‘Jus Cogens after Germany v. Italy: Substantive and Procedural Rules Distinguished’, Leiden Journal of International Law 25 (2012): 979, 986. 93 Ibid., 989. See also Art. 26 of the Rome Statute of the International Criminal Court. 94 Tomuschat (n. 80), 94–5, 97 fn. 32. 95 See the discussion in e.g. Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford: Oxford University Press, 2006), 518–27; Gleider I. Hernández, ‘A Reluctant Guardian: The International Court of Justice and the Concept of “International Community” ’, British Yearbook of International Law 83 (2013): 13, 35–6, 47–8; Bankas (n. 7), 299. 96 Kloth and Brunner (n. 77), 242; Tomuschat (n. 80), 97.

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Jurisdictional Immunities of the State 241 Finally, we should also be aware of the fact that Germany has already been held accountable for the crimes of the Nazi regime and that it is, regardless of the outcome of the ICJ decision, still obligated to pay reparations for these crimes and to negotiate further on this issue.97 Judicial proceedings can of course be incentives for such negotiations, as the case of Princz v Germany demonstrates: even though the US courts accepted Germany’s plea of immunity regarding a claim brought by a former concentration camp prisoner,98 Germany subsequently concluded a compensation agreement with the United States to indemnify the original applicant and other victims of Nazi cruelties.99 To conclude, it is also important to emphasize that individuals may attempt to bring their case before the courts of their own state—a course of action which is certainly not subject to the law of state immunity. Uncertainties nonetheless also remain in this scenario, in particular due to different legal bases and judicial practices which might eventually also preclude victims from gaining compensation via this avenue.100

III. The Immunity Controversy: From State-Centrism to Individualism? After contextualizing the decision of the ICJ within the broader framework of international law de lege lata, it is now time to engage critically with its shortcomings de lege ferenda and to enquire whether the argument that the plea for immunity is a purely procedural principle is indeed a good one. Maybe there are also convincing arguments to the contrary and beyond the Court’s meticulous stock-taking of the law as it is, corroborating the view that violations of human rights and ius cogens norms should not be exempted anymore from litigation on the grounds of state immunity. Particularly the extremely comprehensive dissenting opinion of Judge Cançado Trindade, comprising 111 pages (compared to the 57 pages of the judgment itself),101 presents a coherent, considerate, and value-centred critique of the decision itself as well as of certain developments in international law. The subsequent points of criticism will—in analogy to the defence above—engage with the two core problems of the matter, namely the foreclosure of any developments of new customary law and whether substantive norms should prevail over the procedural law of state immunity. In a nutshell, the arguments 97 Barker (n. 58), 751; Tomuschat (n. 80), 95–6. 98 Princz v Federal Republic of Germany, 26 F 3d 1166 (Court of Appeals for the District of Columbia Circuits, 1 July 1994). 99 Germany–United States Agreement Concerning Final Benefits to Certain United States Nationals Who Were Victims of National Socialist Measures of Persecution of 19 September 1995. 100 See e.g. Philipp Stammler, Der Anspruch von Kriegsopfern auf Schadensersatz (Berlin: Duncker & Humblot, 2009), 159 et seq.; Kloth and Brunner (n. 77), 242–3. 101 Jurisdictional Immunities (Germany v Italy; Greece Intervening) [2012] ICJ Rep. 99, 179–290 (Judge Cançado Trindade, diss. op.).

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242 paul gragl presented below address the limits of the Court’s traditional voluntarist approach102 and argue in favour of establishing a proper hierarchy of norms in which ius cogens rules should reign supreme.

III.1. International Law as a System of Values: Formation Interrupted At the outset, it needs to be highlighted that the role of domestic courts as agents of development and norm-creation in international law is not to be underestimated, because ‘customary international law on the subject of State immunities has grown principally and essentially out of the judicial practice of States on the matter’.103 Especially through their status as subsidiary means for the determination of the law in the sense of Article 38(1)(d) of the ICJ Statute, national court decisions play an immensely crucial role in ascertaining state practice and what the current status of the law is.104 It is therefore undisputed that domestic courts are ipso facto agents of the development of international law.105 Nonetheless, the role of national courts in the process of formation and d etermination of international law is not uncontroversial.106 The ICJ’s judgment in the Jurisdictional Immunities case reveals a profound structural problem of customary international law, namely the fact that state practice can only change if national courts start to decide in contrast to the existing practice. Thereby new customary rules can develop and become valid law. Yet the principal issue is that during this transitionary period from rebellion to consolidation, these national courts encroach upon valid international law.107 As a result, international law is virtually condemned to the paradoxical ‘habit of pulling itself up by its own boot-straps’.108 Yet what the ICJ has effectively done with its judgment is to have interrupted any development of customary international law in this area for the foreseeable future.109 The decisions of the Italian courts are therefore not capable of changing the existing or bringing about customary international law, or in Lord Bingham’s words in Jones v Saudi Arabia: ‘one swallow does not make a rule of international law’.110 102 See also Carlos Espósito, ‘Of Plumbers and Social Architects: Elements and Problems of the Judgment of the International Court of Justice in Jurisdictional Immunities of States’, Journal of International Dispute Settlement 4 (2013): 439, 450–2. 103 Preliminary Report by Mr Sompong Sucharitkul, Special Rapporteur, on the topic of jurisdictional immunities of States and their property, UN Doc. A/CN.4/323 (1979), para. 23. 104 Fox and Webb (n. 17), 175; Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994), 208. 105 Rosanne van Alebeek, ‘Domestic Courts as Agents of Development of International Immunity Rules’, Leiden Journal of International Law 26 (2013): 559, 564. 106 Ibid. 107 Kloth and Brunner (n. 77), 238–9. 108 Geoffrey Robertson QC, Crimes against Humanity, rev. edn (London: Penguin, 2006), 470. 109 Shah (n. 36), 571; Jurisdictional Immunities (Germany v Italy; Greece Intervening) [2012] ICJ Rep. 99, para. 24 (Judge Yusuf, diss. op.). 110 Jones v Saudi Arabia (n. 64), para. 22.

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Jurisdictional Immunities of the State 243 But what is highly commendable about the decisions of the Italian courts is that they sought, through trying to adopt an exception to immunity in cases of breaches of ius cogens, to uphold fundamental values of the international community. They did this in order to consider a development which they interpreted as a continuous change in the principle of state immunity and to implement the effective enforcement of human rights and the prosecution of war crimes and crimes against humanity. In this manner, the foundations of peaceful coexistence between nations could have been strengthened and international law as a system of values would have been consolidated.111 As various ECtHR judges also argued in the joint dissenting opinion in Al-Adsani, it is common knowledge that states have, through their own initiative and in many instances, waived their rights to immunity, which clearly demonstrates that the rules on state immunity do not enjoy a privileged or higher status. Consequently, these rules should not supersede the basic values of the international community.112 Interestingly, it has been stated that the ICJ’s judgment and its analysis of customary law on the day of the judgement had an effect which can be compared to a specific aspect of Heisenberg’s uncertainty principle: in the same way as it is impossible to measure the position of an object without disturbing its momentum,113 the Court tried to ‘measure’ the status of customary law at a given time and, by concluding that there was not sufficient evidence for a new customary rule limiting state immunity, it also influenced the development of such a new rule—that is, effectively preventing such development by giving additional weight to the existing rule.114 As a final verdict, we should of course acknowledge that, seeing the development of the law of state immunity over centuries by national courts, the ICJ is quite a latecomer to the international law of jurisdictional immunities,115 and thus new developments in this area cannot entirely be ruled out. And having said that, it is also legitimate to criticize the Court for not being more flexible and for not having used language which could have indicated that these rules are still in a state of flux.116 This would have allowed for a less stringent approach and potential changes even in the near future.

111 Hermann-Josef Blanke and Lara Falkenberg, ‘Is There State Immunity in Cases of War Crimes Committed in the Forum State? On the Decision of the International Court of Justice of 3 February 2012 in Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening)’, German Law Journal 14 (2013): 1817, 1831. 112 Al-Adsani v The United Kingdom, Application no. 35763/97, ECtHR, 21 November 2001; joint dissenting opinion of Judges Rozakis and Caflisch, joined by Judges Wildhaber, Costa, Cabral Barreto, and Vajić, para. 2. 113 Paul Busch, Teiko Heinonen, and Pekka Lahti, ‘Heisenberg’s Uncertainty Principle’, Physics Reports 452 (2007): 155, 155. 114 Markus Krajewski and Christopher Singer, ‘Should Judges Be Front-Runners? The ICJ, State Immunity and the Protection of Fundamental Human Rights’, Max Planck Yearbook of United Nations Law 16 (2012): 1, 28–9. 115 Roger O’Keefe, ‘Jurisdictional Immunities’, in Christian J. Tams and James Sloan (eds.), The Development of International Law by the International Court of Justice (Oxford: Oxford University Press, 2013), 146–7. 116 Krajewski and Singer (n. 114), 31.

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III.2. Hierarchy of Norms and Ius Cogens The second crucial point of the ICJ’s judgment is its ‘deconstruction’ of ius cogens, as Judge Trindade berated the Court in his dissenting opinion. In a nutshell, he criticized the Court for its encouragement of the ‘stagnation’ of peremptory norms whenever claims of state immunity are at stake, based on a distorted state-centric outlook, and thus for disregarding the human person and the individual’s right of access to justice as an evolving ius cogens norm.117 Hence, in short, the overall argument is that breaches of such norms should, at the end of the day, bring about the removal of claims of state immunity.118 Seeing that the law of state immunity is only instrumental, it is quite tempting to suggest that the Court should not have followed its ‘ethics of responsibility’ (Verantwortungsethik), dedicated to the need for international cooperation within a broader legal framework, but an ‘ethics of conviction’ (Gesinnungsethik),119 meaning that the ICJ should have given justice to the victims of serious human rights violations regardless of the potentially ensuing chaos in international relations.120 In legal terms, this entails that, in contrast to the Court’s findings, state immunity should not be seen as a mere rule of procedural law which cannot conflict with substantive ius cogens norms, but as just another international rule which stands for a certain content and value (i.e. ‘the State as the paramount subject of international law’) which can certainly come into conflict with other contents and values (e.g. the protection of individual human rights). And if this truly is the case, then state immunity, as a conflicting rule of purely dispositive legal character,121 would not produce any legal effects in the light of a hierarchically superior peremptory norm.122 Therefore, Italy assumed both the existence of a normative conflict and a hierarchy of norms in international law by which the conflict is to be resolved by application of the lex superior rule. Yet the question remains whether this really is the case. Seeing that the second part of this assumption—namely the existence of a hierarchy between ius cogens norms and dispositive rules in international law—is more or less accepted,123 we should look into the question as to how state immunity can be substantiated and integrated in this hierarchy. To begin with, one could argue similarly to Italy that acts like torture, enslavement, rape, unlawful killing, genocide, war crimes, and crimes against humanity are too grave to ever fall within the sovereign authority of a state, and that they should therefore be 117 Jurisdictional Immunities (Judge Trindade, diss. op.) (n. 101), paras. 161–299. 118 Ibid., para. 129. 119 For this distinction see Max Weber, Politik als Beruf (Berlin: Duncker & Humblot, 1919), 56 et seq. 120 Robert Uerpmann-Wittzack, ‘Serious Human Rights Violations as Potential Exceptions to Immunity: Conceptual Challenges’, in Anne Peters et al. (eds.), Immunities in the Age of Global Constitutionalism (Leiden: Brill, 2015), 240–1. 121 See Al-Adsani v The United Kingdom, joint dissenting opinion (n. 112), para. 2; Lee M. Caplan, ‘State Immunity, Human Rights, and Jus Cogens: A Critique of the Normative Hierarchy Theory’, American Journal of International Law 97 (2003): 741, 741–2. 122 Gennady M. Danilenko, ‘International Jus Cogens: Issues of Law-Making’, European Journal of International Law 2 (1991): 42, 42. 123 See Art. 53 VCLT.

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Jurisdictional Immunities of the State 245 exceptions to the principle of state immunity.124 Ius cogens norms evolve from the common values of all nations and aim at absolutely prohibiting a given conduct considered to be an utmost evil.125 Consequently, these norms are founded on a deeper moral consensus than mere ius dispositivum, and strict adherence to a consensual approach would run counter to the very essence of peremptory norms.126 The formulation of Article 53 VCLT makes the emergence of peremptory norms from a quasi-constitutional source127 very likely, and if this is indeed the case, the very nature of ius cogens norms must be explained by extra-positivist factors, such as morality and humanity, and their link to transcendent community interest.128 Yet, despite these noble aspirations, traditionalists will nonetheless insist that this remains a conflict of two levels—procedural versus substantive law—and that even deontic logic demonstrates that there is no conflict at all.129 But this fact does not preclude the possibility that there is no conflict between a procedural ius cogens norm and an ordinary procedural rule. Admittedly, the ICJ remarked in the Armed Activities case that presently no peremptory norm exists which would require a state to consent to the jurisdiction of the Court,130 thereby leaving open the possibility of such peremptory procedural rules to emerge in the future.131 However, perhaps the ius cogens prohibition of torture has generated an ancillary procedural rule of peremptory character which requires states to assume civil jurisdiction over other states in cases of alleged torture.132 Consequently there seems to be room for the development of procedural ius cogens rules which could prevail over ordinary procedural rules, such as the right of individuals to access to a court.133 But, after all, it remains highly doubtful whether this right truly is of peremptory nature,134 and even if it were, such a right would not automatically entitle individuals to obtain a judicial remedy and therefore would not automatically overrule existing procedural rules of immunity.135 124 Orakhelashvili (n. 95), 323. 125 Christian Tomuschat, ‘Obligations Arising for States without or against their Will’, Recueil des Cours 241 (1993-IV): 195, 307. 126 Van Hoof (n. 82), 161–2; David F. Klein, ‘A Theory of the Application of the Customary International Law of Human Rights by Domestic Courts’, Yale Journal of International Law 13 (1988): 332, 353; Peter Malanczuk, ‘First Report of the International Law Association (ILA) Study Group on the Law of State Responsibility’, 8 June 2000. 127 Mark W. Janis, ‘The Nature of Jus Cogens’, Connecticut Journal of International Law 3 (1988): 359, 363. 128 Orakhelashvili (n. 95), 111. 129 François Boudreault, ‘Identifying Conflicts of Norms: The ICJ Approach in the Case of the Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening)’, Leiden Journal of International Law 25 (2012): 1003, 1008–12. 130 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and Admissibility [2006] ICJ Rep. 6, para. 69. 131 Talmon (n. 92), 987. 132 Jones v Ministry of Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270, paras. 45 et seq. (Lord Hoffmann). 133 See e.g. the discussion by Orakhelashvili (n. 3), 173–7. 134 See e.g. Case T-315/01, Kadi v Commission [2005] ECR II-3649, wherein the existence of such a potential ius cogens norm was considered, but not determined beyond all reasonable doubt. 135 Talmon (n. 92), 987.

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III.3. Concluding Remarks In the light of these two critical arguments, one should remember that ‘[i]t is very easy to elevate sovereign immunity into a superior principle of international law and to lose sight . . . that it is an exception to the normal doctrine of jurisdiction’. And such an exception should only be granted ‘when it is in consonant with justice and with the equitable protection of the parties. It is not to be granted “as of right” .’136 Hence the Court could have trodden more lightly and engaged in a more considerate weighing of principles,137 given that the ICJ has already followed a more progressive interpretation of i nternational human rights in previous cases.138 Without doubt, this particular area of the law is developing fast, as the example of the US Justice against Sponsors of Terrorism Act of 2016 shows, effectively narrowing the scope of state immunity in order to allow for civil claims against foreign states for injuries, death, or damages from acts of international terrorism.139 In political terms, this act was specifically enacted to allow victims of the 9/11 terrorist attacks to bring claims against Saudi Arabia, which has long been suspected of directly or indirectly funding these attacks. Maybe it is time for a considerable change to the law of state immunity as it currently stands. For instance, domestic courts could—in the future—follow a list of elements and carefully weigh each against the others in a three-step procedure: (1) if it has been determined internationally that an egregious breach of fundamental human rights or ius cogens norms has occurred, and this breach is attributable to the state pleading immunity, then lifting state immunity may be more justified; (2) if there is a state entitled to claim the consequences of the breach on behalf of the victims, then the dispute can be settled at the international level and lifting immunity is less justified; vice versa, lifting immunity and exercising domestic jurisdiction is more justified if there is no state which can act on behalf of the victims; and (3) before lifting immunity, domestic courts should take into consideration the existence of a system of remedies at the disposal of the applicants in the legal order of the allegedly responsible state, since adjudicating the claim in that legal order does not violate state immunity and is therefore less disruptive of the existing rules.140 This means that, eventually and if all three criteria are fulfilled, a state may forfeit its immunity in the face of gross human rights violations, but only as the last remedy and if all other means of enforcement have failed.141 136 Rosalyn Higgins, ‘Certain Unresolved Aspects of the Law of State Immunity’, Netherlands International Law Review 29 (1982): 265, 271. 137 Kloth and Brunner (n. 77), 240. 138 Such as Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep. 136 et seq. 139 s. 2040, Justice against Sponsors of Terrorism Act (JASTA), 28 September 2016. 140 Enzo Cannizzaro and Beatrice I. Bonafé, ‘Of Rights and Remedies: Sovereign Immunity and Fundamental Human Rights’, in Ulrich Fastenrath et al. (eds.), From Bilateralism to Community Interest (Oxford: Oxford University Press, 2011), 839–41. 141 Juliane Kokott, ‘Missbrauch und Verwirkung von Souveränitätsrechten bei gravierenden Völkerrechtsverstößen’, in Ulrich Beyerlein et al. (eds.), Recht zwischen Umbruch und Bewahrung (Berlin: Springer, 1995), 136–7.

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IV. State Immunity and the Relationship between International and National Law The immediate consequence of this criticism of the ICJ’s decision could be seen in Italy itself: in October 2014 the Italian Constitutional Court declared that the primary legislation142 implementing the ICJ judgment of 2012 was unconstitutional for two reasons. First, it held that the customary international rule on state immunity as determined by the ICJ cannot prevail over the supreme constitutional principle of judicial protection of fundamental human rights. And second, Article 94(1) of the UN Charter must be interpreted to the effect that it imposes on Italy an obligation to comply with ICJ decisions only insofar as it does not require a violation of the Constitution.143 This decision raises various international law questions, particularly those with regard to the relationship between international and national law. The most obvious problem in this respect is that the Constitutional Court considered supreme constitutional principles to prevail over international law, despite international law having the same rank as the Italian Constitution itself.144 The Court nonetheless dismissed any potential conflict between national and international law, as it practically balanced two concurrent international norms with each other—the law of state immunity and human rights as ‘consubstantial norms’ which exist both as national and international norms145—thus resembling the approach of the Court of Justice of the EU in Kadi.146 Furthermore, the Court’s decision is very similar to the Medellín judgment of the United States Supreme Court,147 since it rejected the doctrine of absolute supremacy of international law over domestic law.148 However, this very supremacy is a necessary fundamental principle of international law,149 because permitting national courts to evade the application of international law on the basis of domestic law ultimately 142 Law 5/2013 obliging Italian judges to deny their jurisdiction in order to implement the ICJ’s judgment from 2012 and Law 848/1957 obliging Italian judges to comply with ICJ judgments in general. 143 Decision no. 238/2014, 22 October 2014, confirmed by Order no. 30/2015, 3 March 2015. 144 The incorporation of international law into Italian law is governed by Arts. 10, 80, and 87 of the Constitution. 145 See Antonios Tzanakopoulos, ‘Domestic Courts in International Law: The International Judicial Function of National Courts’, Loyola of Los Angeles International and Comparative Law Review 43 (2011): 133, 178. 146 Joined Cases C-402/05 and C-415/05 Kadi and Al Barakaat v Council and Commission [2008] ECR I-6351. 147 Medellín v Texas, 552 US 491, 128 S. Ct 1346 (2008). 148 Massimo Lando, ‘Intimations of Unconstitutionality: The Supremacy of International Law and Judgment 238/2014 of the Italian Constitutional Court’, Modern Law Review 78 (2015): 1029, 1036. 149 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Advisory Opinion) [1988] ICJ Rep. 12, para. 57; Gerald Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, Recueil des cours 92 (1957): 5, 85.

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248 paul gragl t hreatens to undermine the effectiveness of international law.150 On its merits, the judgment of the Italian Constitutional Court is to be welcomed in the same way as Kadi but, seen in a context, it displays a profoundly dualist understanding of the law which puts the other Italian courts in a veritable dilemma: should they either uphold German immunity in order to not engage the international responsibility of Italy or should they exercise civil jurisdiction against Germany in order to comply with the ruling of the Italian Constitutional Court?151 To conclude, this chapter will address both the positive and negative aspects of the monist and dualist approaches. A monist stance, on the one hand, would uphold the supremacy of international law, effectively making contravening domestic law internationally illegal. Thus principally, the ICJ judgment in Jurisdictional Immunities can be seen as a progressive step towards a cosmopolitan international legal order wherein a more effective enforcement of international law is made possible by what Antonio Cassese called the ‘invalidation’ effect152 on domestic law incompatible with international law. In the long run, decisions of this kind will have a stabilizing impact on the international legal order and conclusively clarify what the law is. The most pertinent problems of a monist approach under the supremacy of international law are, however, the advancement of traditional state-centred sovereignty at the expense of individual human rights and the fight against impunity; the hindering of the progressive development of international law, particularly its human rights dimension; and the stifling effect on an otherwise dynamic judicial practice of reconciling the traditional law of state immunity with the need to modernize a system of international law still dependent on the principle of state sovereignty.153 A dualist view, on the other hand, in favour of the supremacy of national law and as exemplified by the Italian Constitutional Court, reinforces the trend towards a stronger respect of human rights and the individual in international law. Eventually, this could have the beneficial effect of promoting a more coherent human rights culture in international law. In doctrinal terms, this would also mean that constitutional law would supersede international law only in order to protect core constitutional values and insofar these values have not been met by international norms, along the lines of the Solange

150 André Nollkaemper, ‘The Rapprochement between the Supremacy of International Law at International and National Levels’, in Helene Ruiz Fabri et al. (eds.), Select Proceedings of the European Society of International Law: Volume 2 of 2008 (Oxford: Hart, 2010), 242. 151 Giovanni Boggero, ‘The Legal Implications of Sentenza No. 238/2014 by Italy’s Constitutional Court for Italian Municipal Judges: Is Overcoming the “Triepelian Approach” Possible?’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 76 (2016): 203, 205. 152 Antonio Cassese, ‘Towards a Moderate Monism: Could International Rules Eventually Acquire the Force to Invalidate Inconsistent National Laws?’, in Antonio Cassese (ed.), Realizing Utopia: The Future of International Law (Oxford: Oxford University Press, 2012), 191–2. 153 Francesco Francioni, ‘From Utopia to Disenchantment: The Ill Fate of “Moderate Monism” in the ICJ Judgment on The Jurisdictional Immunities of the State’, European Journal of International Law 23 (2012): 1125, 1128–9.

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Jurisdictional Immunities of the State 249 jurisprudence of the German Bundesverfassungsgericht.154 The central issue with this viewpoint remains, nevertheless, the potential undermining of the international legal system and the detrimental consequences on the overall effectiveness of international norms. One could certainly argue that even in this scenario, the coherence of the international legal order remains intact because Italy can be held responsible for wrongful international conduct but, substantially, this does not change the paradoxical situation that the Italian courts try to bring about new customary international law through currently unlawful practice.

V. Conclusion In the same way as this Handbook in its entirety intends to show that jurisdiction is a multivalent concept, sitting at the intersections of political and legal theory, technical doctrine, and sovereignty studies,155 this chapter has aimed at demonstrating what complex matters jurisdictional immunities of the state are. And although the law of state immunity has—to a certain extent—been consolidated by the ICJ’s judgment of 2012, it remains subject to fierce legal and political criticism. As Alexander Orakhelashvili states, it may be one thing to contend that in certain situations the grant of immunity to a foreign state before domestic courts is politically and ideologically desirable; but it is another thing to argue that the same grant of state immunity is required or allowed by domestic or international law. In this vein, there can be legal outcomes which may or may not be compatible with the ideological or political agenda of certain interest groups.156 Alternatively put, besides the long-standing dispute concerning the relationship between national and international law in terms of monism and dualism, this debate also involves the ancient dichotomy of strict legal positivism versus a more normative and value-laden view of the law. De lege lata, the ICJ’s decision was entirely correct and in accordance with the law but, de lege ferenda, it becomes evident that there is a tremendous need to catch up with the dynamic development of the international legal system.157 Even though it seems that the Court’s answer in the negative appears to have foreclosed any development of the customary law of state immunity in this area for the foreseeable future, we should look to treaty law to effect change158—for example, 154 See BVerfGE 37, 271—Solange I, Judgment of 29 May 1974; BVerfGE 73, 339—Solange II, 22 October 1986. See also in general Fulvio Maria Palombino, ‘Compliance with International Judgments: Between Supremacy of International Law and National Fundamental Principles’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 75 (2015): 503–29. 155 Asha Kaushal, ‘The Politics of Jurisdiction’, Modern Law Review 78 (2015): 759, 791. 156 Orakhelashvili (n. 3), 155. 157 Giovanni Boggero, ‘Without (State) Immunity, No (Individual) Responsibility’, Goettingen Journal of International Law 2 (2013): 375, 397. 158 Shah (n. 36), 571–3.

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250 paul gragl by adopting a human rights protocol to the UN Convention on State Immunity.159 Decisions like this therefore raise the key question of how international law can balance community and individual interests, by limiting state jurisdiction through exceptions to immunity, for instance, in order to fight impunity. Such steps can be taken in the form of treaties, such as the Rome Statute of the International Criminal Court, which complements state jurisdiction160 and aims at ensuring that international crimes do not go unpunished. For at the end of the day, immunity should never be tantamount to impunity. 159 See e.g. Christopher Keith Hall, ‘UN Convention on State Immunity: The Need for a Human Rights Protocol’, International and Comparative Law Quarterly 55 (2006): 411–26. 160 Santiago Villalpando, ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’, European Journal of International Law 21 (2010): 387, 414, 416.

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Chapter 12

The Esta blish m en t, Ch a nge , a n d Ex pa nsion of J u r isdiction through Tr eatie s Dino Kritsiotis*

I. Introduction

252

II. On Territoriality

256

III. On Universality

270

IV. Jurisdiction on Multiple Grounds

286

V. Conclusion

297

* I am most grateful to Anne Orford and David M. Ong for engaging various conversations while this chapter was under preparation.

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252 Dino Kritsiotis

I. Introduction What function (or functions) is (or are) served by the principles of prescriptive jurisdiction when applied to conventional arrangements regarding the exercise of that jurisdiction under public international law? When Harvard Law School’s codification project on Research in International Law concluded its programme of work in 1935 with a Draft Convention on Jurisdiction with Respect to Crime,1 it defined the ‘jurisdiction’ of a state as ‘its competence under international law to prosecute and punish for crime’.2 Reporting that there was ‘a striking paucity of outstanding international precedents’ and that ‘[t]he practice of nations has been recorded, rather, in hundreds of national adjudications, in petty incidents, and in informal settlements of a more prosaic type’,3 the project sought to condense into the form of a series of propositions ‘on which a more or less extensive jurisdiction is claimed by States at the present time’.4 Five such general principles were identified as ‘a statement of the penal jurisdiction of States which should have the advantage, for every State, of substituting for the petty conflicts and uncertainties that have caused irritation in the past the security that comes from a common understanding of [these] general principles’.5 The idea, then, was that greater understanding and greater certainty regarding the existence and content of these principles— or, better, these competences of states—would ward off further irritation, or the ‘more or less troublesome problems of penal jurisdiction’ that the project had concerned itself with from the outset.6 What is striking about the five general principles that were there identified— territoriality, nationality, protection, universality, and passive personality7—is that they 1 As the third phase of the Harvard Research in International Law; the first phase consisted of draft conventions for nationality, responsibility of states for injuries to foreigners and territorial waters; the second phase contained draft conventions for diplomatic privileges and immunities and the legal position and functions of consuls: American Journal of International Law 29 Supp. 1 (1935): 1. The third phase also included draft conventions on the law of extradition and the law of treaties, with Edwin D. Dickinson serving as its Reporter; Dickinson was the author of ‘Jurisdiction at the Maritime Frontier’, Harvard Law Review 40 (1926): 1, and ‘Jurisdiction Following Seizure or Arrest in Violation of International Law’, American Journal of International Law 28 (1934): 231. 2 Art. 1(b) of the Draft Convention, reproduced in American Journal of International Law 29 Supp. 1 (1935): 439. Jurisdiction ‘is never used to describe the competence of courts or other governmental agencies within States’ (at 467). 3 Ibid., 444 (where the Cutting incident and the Lotus case were regarded as ‘standing almost alone as the causes célèbres of recent times’). 4 Ibid., 445. 5 Ibid., 447. 6 Ibid., 443 (with the project elsewhere referring to the mitigation of ‘normal friction at the international frontiers’: at 444). 7 Though, in the end, the principle of passive personality was the only one not endorsed: ‘[f]ailure to include the principle of passive personality in the present Convention makes it all the more essential that such desirable ends as it may serve in the States which assert it should be attainable under some one or more of the principles here incorporated’: ibid., 579. It has also been referred to as ‘the passive national theory of jurisdiction’: W. E. Beckett, ‘Criminal Jurisdiction over Foreigners: The Franconia and the Lotus’, British Yearbook of International Law 8 (1927): 108, 111.

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Establishment and Change through Treaties 253 were conceived as part of an exercise in ‘delimit[ing] [the] authority in the administration of national law’,8 a necessary consequence one would think of any process given to empirical distillation, to common denominatorship, to codification.9 And that codification was the product of an impressive (though by no means exhaustive) harvest of ‘the experience of national administrations in dealing with an infinite variety of workaday matters of international import’,10 all painstakingly chronicled alongside the Draft Convention when it was published.11 Yet, the project did not confine itself to the mere practice of states.12 It also had recourse to international legislation ‘in the form of general treaties [of which] there are a few notable examples’;13 to resolutions of private international organizations (such as the Institute of International Law, the International Prison Congress, the Conference for the Unification of Penal Law, and the International Congress of Comparative Law);14 as well as to developments that had occurred in national legislation.15 As this cartography of competences came to be sketched in the Draft Convention, it is noticeable how each of the resulting principles took their cue from the concept or the image of the state—that is, through its territory,16 its nationals,17 its ‘national character’,18 its protection, or its security.19 Even when there occurred a break in the mould in respect of the principle of universality, it was still in terms of the state—or, more precisely, the limitations of the state and of statist thinking more generally—that the competence was conceived: that is, ‘in a place not subject to the authority of any State and [where] the alien is not a national of any State’.20 And the Draft Convention proceeded to make a 8 American Journal of International Law 29 Supp. (1935): 439, 444. Hence, the resulting Draft Convention as ‘defining and limiting the penal jurisdiction of States in the broadest sense’ and providing ‘each State with a definition of the limits beyond which other States may not go in assuming penal jurisdiction’: at 446. 9 Or, as it is conceived by the project itself, ‘[t]he best evidence of international law . . . is probably to be found in “the general principles of law recognized by civilized nations”; and the work of codification becomes, in one aspect at least, a search for the greatest common denominator of national law and practice with respect to a matter of international concern’: ibid., 444–5. 10 Ibid., 444. 11 Ibid., 439. 12 Ibid., 444. 13 Ibid. (such as the 1878 Treaty to Establish Uniform Rules for Private International Law and the 1889 Treaty on International Penal Law). 14 Ibid. 15 Regarded for these purposes as separate to the practice of states: ibid. (‘an adequate statement of the international law of penal jurisdiction must rest primarily upon a foundation built of materials from the cases, codes and statutes of national law.’) 16 As per the principle of territoriality: Arts. 1(d) and 3 of the Draft Convention: ibid., 439. This was the so-called ‘crown jewel’ of the Draft Convention: Dan Jerker B. Svantesson, ‘A New Jurisprudential Framework for Jurisdiction: Beyond the Harvard Draft’, American Journal of International Law Unbound 109 (2015): 69. 17 As per the principle of nationality: Arts. 1(e) and 5 of the Draft Convention (n. 2); see also Art. 6 (on persons assimilated to nationals). 18 Art. 4 (on ships and aircraft): ibid. See also Art. 6(b). The idiom of ‘national character’ is also applied to corporations or other juristic persons in Arts. 5 and 10(c). 19 Arts. 7 and 8 ibid. 20 Wherein lies the apparent comprehensiveness of public international law: Art. 10(d) ibid. But see too ibid., 445 (‘jurisdiction by reference to the custody of the person committing the offence’). Although, in the Draft Convention, the principle of universality was invoked in Art. 9 as follows: ‘A State has jurisdiction with respect to any crime committed outside its territory by an alien which constitutes piracy by

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254 Dino Kritsiotis s eries of deft and close calibrations about the authority and acceptance of each of these principles as a matter of law, cautiously moving from the ‘fundamental’ to the ‘not essential’, from ‘competence’ to the ‘auxiliary competence’ of states.21 Yet, when Rosalyn Higgins came to publish her Problems and Process: International Law and How We Use It some several decades afterwards, each of these principles was still making their respective appearances—and doing so within a chapter devoted to ‘norms for the allocation of competences’ of states under public international law.22 The ambition of this chapter is to consider how this ‘competence’23 or ‘international capacity’24 of states has been invoked in treaty form, since jurisdictional action by way of conventional arrangement has become much more of a concerted phenomenon since the end of World War Two: we are some considerable distance away from the days in which international legislation spoke with muted or tempered voice on what states were to make of this competence—on this aspect of their ‘power’.25 At the outset of the chapter, it might be helpful to recall that both convention and custom can specify separate—and, indeed, different—jurisdictional terms for an identical crime.26 We shall need to be international law.’ See also Roger O’Keefe, International Criminal Law (Oxford: Oxford University Press, 2015), 17 (‘prescriptive criminal jurisdiction in the absence of any other internationally-recognized head of prescriptive criminal jurisdiction’). 21 It does so in the following statement in the introductory comment accompanying the Draft Convention (n. 2), 445: Of these five principles, the first [territoriality] is everywhere regarded as of primary importance and of fundamental character. The second [nationality] is universally accepted, though here are striking differences in the extent to which it is used in different national systems. The third [protective] is claimed by most States, regarded with misgivings in a few, and generally ranked as the basis of an auxiliary competence. The fourth [universality] is widely though by no means universally accepted as the basis of an auxiliary competence, except for the offence of piracy with respect to which it is the generally recognized principle of jurisdiction. The fifth [passive personality], asserted in some form by a considerable number of States and contested by others, is admittedly auxiliary in character and is probably not essential for any State if the ends served are adequately provided for on other principles. 22 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994), 78 (‘the allocation of competences among [S]tates’) (emphasis added). Also making an appearance was effects jurisdiction, ‘claims for which are more controversial’ (ibid., 56). See further O’Keefe (n. 20), 15–16. 23 n. 2. Note, too, Art. 3(1) of the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, 704 UNTS 219 (‘[t]he State of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board’). The term ‘jurisdictional competence’ has also been used: D. W. Greig, International Law, 2nd edn (London: Butterworths, 1976), 214. 24 n. 2, 467. Note the distinction made between jurisdiction that ‘is a straightforward function of a state’s sovereignty over its territory’ and jurisdiction ‘dependent on any permissive rule’: O’Keefe (n. 20), 9. 25 See Malcolm Shaw, International Law, 8th edn (Cambridge: Cambridge University Press, 2017), 483 and David Harris and Sandesh Sivakumaran, Cases and Materials on International Law, 8th edn (London: Sweet & Maxwell, 2015), 223. See also Joseph H. Beale, ‘Jurisdiction of a Sovereign State’, Harvard Law Review 36 (1922–3): 241, 241 (‘[t]he power of a sovereign to affect the rights of persons, whether by legislation, by executive decree, or by judgment of a Court, is called jurisdiction’). 26 Oscar Schachter, ‘Entangled Treaty and Custom’, in Yoram Dinstein and Mala Tabory (eds.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Dordrecht: Martinus Nijhoff Publishers, 1989), 717.

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Establishment and Change through Treaties 255 sensitive to this dichotomy as we wade through a thicket of precedents and provisions, and while this will serve as an important and recurring theme for the chapter as a whole, the main focus will be to illuminate how the five jurisdictional principles encode a series of discrete factual matrices but really say little on what is to be done with this power in earnest—on how or when it is to be exercised. It is as if a new—or, more accurately, a more comprehensive—set of formulations needs to be developed and systematically deployed for how we speak about the law on jurisdiction: it will become evident that the principles of prescriptive jurisdiction are no longer sufficient descriptors in and of themselves. We shall also find that, in increasing and discernible measure, treaties have invoked a veritable suite of ‘jurisdictional possibilities’ over time,27 often making greater demands on states than is found in (to take an early example) the 1926 League of Nations Convention to Suppress the Slave Trade and Slavery (according to which the High Contracting Parties undertook, ‘each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, so far as they have not already taken the necessary steps: (a) to prevent and suppress the slave trade; (b) to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms’).28 By way of treaty design, states have accentuated the form and shape of how their own jurisdictional powers are to be engaged: there is no question that jurisdiction has come to form a much more pronounced and explicit part of the strategization towards common ends on a host of matters ranging from the counterfeiting of currency to human trafficking.29 How treaties have done this, and how they purport to navigate 27 Higgins (n. 22), 69. 28 60 LNTS 253. Noteworthy in this respect is also Art. 3 (which provided in part that ‘[t]he High Contracting undertake to adopt all appropriate measures with a view to preventing and suppressing the embarkation, disembarkation and transport of slaves in their territorial waters and upon all vessels flying their respective flags’) and Art. 6 (‘[t]hose of the High Contracting Parties whose laws do not at present make adequate provision for the punishment of infractions of laws and regulations enacted with a view to giving effect to the purpose of the present Convention undertake to adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions’). See further M. Cherif Bassiouni, ‘Enslavement: Slavery, Slave-Related Practices, and Trafficking in Persons for Sexual Exploitation’, in M. Cherif Bassiouni (ed.), International Criminal Law, I: Sources, Subjects, and Contents, 3rd edn (Leiden: Martinus Nijhoff Publishers, 2008), 535, 545. By way of further example, Art. 25 of the 1930 Convention Concerning Forced or Compulsory Labour (ILO Convention No. 29), 39 LNTS 55, provided that ‘[t]he illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced’. 29 And robustly so: O’Keefe remarks that ‘the many international criminal law conventions oblige states parties to grant their courts procedural competence over the offences in question of a range of specified bases’. See O’Keefe (n. 20), 9 (as compared to customary international law—where ‘jurisdiction to prescribe is permissive, not mandatory’). So the 1929 International Convention for the Suppression of Counterfeiting Currency, 112 LNTS 371, Art. 8, provides that ‘[i]n countries where the principle of extradition of nationals is not recognized, nationals who have returned to the territory of their own country after the commission abroad of an offence referred in in Article 3 [of this Convention] should be punishable in the same manner as if the offence had been committed in their own territory, even in a case where the offender has acquired his nationality after the commission of an offence’.

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256 Dino Kritsiotis the relationship between these jurisdictional possibilities, are matters which also form the subject of the present chapter—and are very much testament to the deepening complexity of this topic when all is said and done.30 The chapter will try to tease out some of this complexity by first approaching the principle of territoriality and then it will turn to the principle of universality.31 In each case, we shall try to understand how and to what end conventional arrangements have invoked the said principles before (in the penultimate section of the chapter) we reflect on the notion of jurisdiction on multiple grounds: the idea that conventional design has come to empanel more than one competence of states in respect of the same (international) crime. The final section of the chapter offers a summation of the main claims of the chapter as well as some concluding thoughts.

II. On Territoriality The territorial principle of jurisdiction has been described as ‘the most obvious basis upon which a State exercises its jurisdiction’ because it reflects precisely what sovereignty means or is supposed to mean in respect of a given territory—that ‘by virtue of its sovereignty over its territory the State has the right to legislate for all persons within its territory’.32 A state can therefore legislate in and for its territory as it deems fit;33 its claim to act on these terms is ‘irrefutable and unproblematic’34 because that is what we have come to expect of the state and its relation with the territory over which it is sovereign.35

30 Beyond any conventional versus customary dichotomy: O’Keefe (n. 20), 9. 31 The focus of the 2001 Princeton Principles on Universal Jurisdiction, http://hrlibrary.umn.edu/ instree/princeton.html. See further Stephen Macedo (ed.), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia, PA: University of Pennsylvania Press, 2004). 32 Vaughan Lowe, International Law (Oxford: Oxford University Press, 2007), 172. Or, as it has been put elsewhere, the territorial principle ‘is an application of the essential territoriality of sovereignty, the sum of legal consequences which a state has’: James Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford University Press, 2012), 458. 33 Jan Klabbers, International Law, 2nd edn (Cambridge: Cambridge University Press, 2017), 99. Hence the claim that ‘[j]urisdiction is the right to prescribe and enforce rules against others’: Lowe (n. 32), 171. Furthermore at 170: ‘[t]he essence of a State lies in the entitlement of the handful of people who constitute the government, and the legislature . . . of the State to force everyone within the State to do what the government want them to do’. See too the formulation of R. Y. Jennings, ‘The Proper Reach of Territorial Jurisdiction: A Case Study of Divergent Attitudes’, Georgia Journal of International and Comparative Law 2 Supp. 2 (1972): 35, 41. 34 Hannah L. Buxbaum, ‘Territory, Territoriality, and the Resolution of Jurisdictional Conflict’, American Journal of Comparative Law 57 (2009): 631, 636. Indeed, as conceived by the Harvard Research in International Law, it is with the territorial principle of jurisdiction that the law of penal jurisdiction ‘begins’: (n. 2), 480. 35 See further Crawford (n. 32), 448 (‘jurisdiction, including legislative competence over national territory, may be referred to by the terms “sovereignty” or “sovereign rights”’).

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Establishment and Change through Treaties 257 Not only can the state enact laws for its territory (prescriptive jurisdiction),36 but, within that territory, it can enforce those laws as well (prerogative jurisdiction)37—an arrangement that is said to be unique to the principle of territorial jurisdiction from all of the principles that are considered here.38 There are traces of this idea that prescriptive and prerogative jurisdiction is ultimately a matter of sovereign choice from the 1889 Treaty on International Penal Law (‘[c]rimes and offences shall be subject to trial by the courts and punished according to the laws of the country where the offence was committed, regardless of the nationality of the agent, or of the victim or wronged party’):39 it is according to the laws of the state that the scope of territoriality would be constituted for both prescriptive and prerogative jurisdiction. There has been some acknowledgement, though, that ‘an offence [can affect] different States’ at one and the same time,40 but, ultimately, it was ‘the jurisdiction of the State in whose territory the offender is caught’ that was to be prioritized.41 To similar effect, in the Lotus case between France and Turkey in September 1927, the Permanent Court of International Justice spoke of the ‘discretion’—what it regarded as the ‘wide measure of discretion’—‘left to States by international law [which] explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States’ and of the various efforts ‘for many years past . . . to prepare conventions the effect of which would be precisely to limit the discretion at present left to States in this respect by international law, thus making good the existing lacunae arising from the diversity of the principles adopted by the various States’.42 Indeed, it is in terms of this ‘discretion’ for jurisdictional action that the Permanent Court summarized the position of Turkey (who was seeking to exercise its territorial jurisdiction on the basis of Article 6 of its Criminal Code for a collision that had

36 It is common to equate ‘prescriptive’ with ‘legislative’ jurisdiction, although the former is more encompassing because ‘[j]urisdiction to create rules of general import . . . may be formulated not only by legislatures, but also by other governmental institutions, and even courts’: Lori Fisler Damrosch et al., International Law: Cases and Materials, 5th edn (St Paul, MN: West Publishing, 2009), 755. 37 This distinction is frequently made by international lawyers in the context of discussing jurisdiction. See D. P. O’Connell, International Law, 2nd edn (London: Stevens & Sons, 1970), II, 602–3 and, also, Lowe, n. 32, 171. 38 See J. E. S. Fawcett, The Law of Nations (London: Allen Lane, 1968), 54, and O’Keefe (n. 20), 29 (though denoting this as a ‘general rule’—a rule that ‘remains cardinal’: at 30). See also the discussion in Greig (n. 23), 210, 218–20 (esp. at 214: territory ‘is at most a generalization which forms the basis, though not always the content, of a number of rules of law’). 39 18 Martens NRG, 2nd Series, 432, Art. 1. 40 Art. 3. 41 Ibid. See also Art. 6 (‘[a]cts done in the territory of a State, which are not punishable according to its laws, but are punishable in another country, in which they produce punishable results, shall not be made the subject of judicial action in the latter, unless the offender is found within its territory’). See further Greig (n. 23), 214. 42 SS Lotus (France v Turkey) [1927] PCIJ Series A, No. 10, 19. See further Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84 (2014): 182, 183 (on the notion of discretionary regulatory authority). Additionally, the Permanent Court observed that a state ‘may not exercise its power in any form in the territory of another State’—and that ‘[i]n this sense’ jurisdiction ‘is certainly territorial’.

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258 Dino Kritsiotis occurred against one of its steamers on the high seas)43 as against the position of France (who had brought the case before the Permanent Court challenging the permissibility of any such action by Turkey):44 According to one of these standpoints, the principle of freedom, in virtue of which each State may regulate its legislation at its discretion, provided that in so doing it does not come in conflict with a restriction imposed by international law, would also apply as regards law governing the scope of jurisdiction in criminal cases. According to the other standpoint, the exclusively territorial character of law relating to this domain constitutes a principle which, except as otherwise expressly provided, would, ipso facto, prevent States from extending the criminal jurisdiction of their courts beyond their frontiers; the exceptions in question, which include for instance extraterritorial jurisdiction over nationals and over crimes directed against public safety, would therefore rest on special permissive rules forming part of international law.45

For the Court, whichever ‘hypothesis’ was to be adopted, ‘the same result will be arrived at in this particular case: the necessity of ascertaining whether or not under 43 The provision at issue in the Lotus case was Art. 6 of the Turkish Penal Code, Law No. 765 of 1 March 1926 (Official Gazette No. 320 of 13 March 1926): Any foreigner who, apart from cases contemplated in Art. 4, commits an offence abroad to the prejudice of Turkey or of a Turkish subject, for which offence Turkish law prescribes a penalty involving loss of freedom for a minimum period of not less than one year, shall be punished in accordance with the Turkish Penal Code provided that he is arrested in Turkey. The penalty shall however be reduced by one third and instead of the death penalty, twenty years of penal servitude shall be awarded. Nevertheless, in such cases, the prosecution will only be instituted at the request of the Minister of Justice or on the complaint of the injured Party. If the offence committed injures another foreigner, the guilty person shall be punished at the request of the Minister of Justice, in accordance with the provisions set out in the first paragraph of this article, provided however that: (1) the article in question is one for which Turkish law prescribes a penalty involving loss of freedom for a minimum period of three years; (2) there is no extradition treaty or that extradition has not been accepted either by the government of the locality where the guilty person has committed the offence or by the government of his own country. The provision is reproduced in the judgment in the Lotus case (n. 42), 14–15; it is taken verbatim from the Italian Penal Code; in his dissenting opinion, Judge M. Nyholm observed that Turkey ‘has after all merely followed a tendency of modern legislation, to which tendency, however, an important group of nations are still opposed’: at 63–4. It is significant for present purposes that this provision—an exercise of prescriptive jurisdiction—is premised on ‘[a]ny foreigner’ being ‘arrested in Turkey’: in other words, it is not seeking to exercise prerogative (i.e. enforcement) jurisdiction extraterritorially. On this matter, consider W. E. Beckett, ‘The Exercise of Criminal Jurisdiction over Foreigners’, British Yearbook of International Law 6 (1925): 44, 44. Jennings regards this ‘aspect of the territorial principle’ as ‘unassailable’: R. Y. Jennings, ‘Extraterritorial Jurisdiction and the United States Antitrust Laws’, British Yearbook of International Law 31 (1957): 146, 149. 44 Where the Harvard Research in International Law invited us to consider whether jurisdictional competence derives either from the fact that ‘international law invests States’ to that effect (France) or that it is ‘the result of an absence of legal restrictions upon State activity’ (Turkey): (n. 2), 467–8. 45 Lotus case (n. 42), 20.

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Establishment and Change through Treaties 259 international law there is a principle which would have prohibited Turkey, in the circumstances of the case before the Court, from prosecuting Lieutenant Demons [officer of the watch on board the Lotus at the time of the collision]’.46 Yet, what is interesting to observe from this excerpted passage is the reference to the ‘scope of jurisdiction’ as distinct from the ‘principle’ of territorial jurisdiction itself (‘the exclusively territorial character of law’)—a separation of propositions that is important to make because proof of the existence of the principle is surely independent of any discussion of the scope or parameters of the said principle, and it is a consideration that informed a good deal of the thinking of the Court. After all, elsewhere in its ruling, the Court had described the territorial character of the criminal law as ‘fundamental’ before going on to make the observation that it ‘is not an absolute principle of international law and by no means coincides with territorial sovereignty’,47 such that its demarcation—for example, as to the meaning of ‘territory’ and the acceptance (or otherwise) of subjective and objective territoriality—constituted a separate field of enquiry.48 Yet, it is this sense of the ‘fundamentality’49 of the principle of territorial jurisdiction that raises, in turn, the question of whether the normative authority for its existence is somehow different—that is, whether it is of a different order or pedigree—to the other principles known to public international law: does the fundamentality of the principle derive from the fact that it inheres in the sovereignty of the state,50 or is this rhetoric simply engaged so as to emphasize the longevity of the principle over and above these other principles?51 Put differently, are we to consult ‘precedents of this nature’—that is, precedents of ‘close analogy’—in order ‘that the existence of a general principle applicable 46 Ibid., 21 (‘ascertained by examining precedents offering a close analogy to the case under consideration’). The Court earlier articulating its (famous) formulation—that ‘[r]estrictions upon the independence of States cannot . . . be presumed’: at 18. See further Higgins (n. 22), 66. 47 Lotus case (n. 42), 20. Though, as far as prerogative jurisdiction is concerned: ‘outside the territory, the frontier once been traversed, the right of States to exercise police duties and jurisdiction ceases to exist; their sovereignty does not operate, and crimes and offences, even in the case of those inflicting injury upon themselves, fall normally outside the sanctioning force of their courts. Extra territorim jus diceni impune non paretur.’ Ibid., 44. See also n. 38. 48 Lotus case (n. 42), 20 (in accordance with the fact that ‘all or nearly all [of] these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in way which vary from State to State’ (emphasis added)). See further J. L. Brierly, ‘The “Lotus” Case’, Law Quarterly Review 44 (1928): 154, 155 (‘the principle of territorial criminal jurisdiction by which [the Court] proposed to decide the case was not in doubt, but merely its applicability to the facts’). To similar effect, see Art. 9 of the 1933 Montevideo Convention on the Rights and Duties of States, 165 LNTS 19, which made clear that ‘[t]he jurisdiction of states within the limits of national territory applies to all the inhabitants’. 49 As per n. 47. 50 As would appear to be the position of O’Keefe (n. 24). Consider, too, the distinction made between ‘sovereignty’ and ‘jurisdictional competence’ in respect of the territorial seas: R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edn (Manchester: Manchester University Press, 1999), 72. Also Shaw (n. 25), 491, and Klabbers (n. 33), 106. 51 Consider, however, Brierly: ‘[i]nternational law did not start as the law of a society of States each of omnicompetent jurisdiction, but of States possessing a personal jurisdiction over their own nationals and later acquiring a territorial jurisdiction over resident non-nationals’. See Brierly (n. 48), 156.

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260 Dino Kritsiotis to the particular case may appear’,52 or are the ‘objections or complaints on the part of other States’53 only really relevant for marking out the scope of that territoriality? As a conceptual matter, the principle of territoriality stands in vivid contrast to those principles that are often brought within the harness of extraterritoriality—namely, the principles of nationality, protection (security), passive personality, and universality— which all proceed from crimes committed outwith the territory of the prosecuting state; par definitionem, they are therefore not premised on territory at all.54 As such, these principles do not command the ‘universal assent’ that is so often and so forthrightly proclaimed for the principle of territoriality,55 and it has been asked whether extraterritorial jurisdiction in this generic sense ‘is a matter left within the discretion of each sovereign State’:56 It seems reasonable to infer from the existence of these principles of extraterritorial jurisdiction, firmly entrenched as they are in the practice of States, that some justifying principle is thought to be necessary to found extraterritorial jurisdiction; that it is not a matter of sovereign discretion. The importance attached by States to nationality as a source of jurisdiction is particularly striking. For if it were indeed the case that States might at their absolute discretion exercise extraterritorial jurisdiction, then for the purposes of jurisdiction nationality would be largely pleonastic. This cannot be so. The inference is irresistible that the principle of nationality extends a salient into an area which is otherwise forbidden or at least dubious ground. Indeed, unless there be some legal as well as practical limit on extraterritorial jurisdiction, even the territorial principle itself is self-defeating, and the claim of a court to have jurisdiction over an offence because it was committed within the territory becomes, for the purpose at least of international law, a work of supererogation.57

It is instructive that, in this analysis, the notion of ‘sovereign discretion’ is counterposed against ‘some justifying principle’ which is thought necessary to ‘found’ e xtraterritorial jurisdiction (where the principle of nationality is volunteered as an illustration of ‘a source of jurisdiction’: without any empirical mooring, prescriptive jurisdiction in this context would produce an offending ‘salient’, or so the author reasons).58 This ‘sovereign discretion’ is then rendered in terms of an ‘absolute discretion’,59 when, in truth, there are really two processes at work here: ‘some justifying principle’ would 52 Lotus case (n. 42), 21. The Court later admitted that it had ‘included in its researches all precedents, teachings and facts to which it had access and which might possibly have revealed the existence of one of the principles of international law contemplated in the special agreement’ to bring the matter before the Court (at 31). 53 n. 42. 54 Jennings (n. 43), 150, 153–6. Notwithstanding any legal fictions devised to this effect (n. 29). 55 Jennings (n. 43), 148. 56 Ibid., 150. Jennings’ assessment: ‘[t]he practice of States leans against such a conclusion’ for ‘the fact is that States do not give themselves unlimited discretion in the matter’. 57 Ibid., 150–1. 58 Ibid. 59 Ibid.

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Establishment and Change through Treaties 261 need to be discerned from the practice of States in order ‘to found extraterritorial jurisdiction’ or some version of it in the first instance—in other words, ‘a source of jurisdiction’ would need to be ascertained above and beyond the principle of territoriality.60 Such competence would thus need to be ‘found’ or established to begin with,61 and, then, subsequent to this, the discretion of states would then operate within some sort of framework—for that competence must accord with ‘some legal as well as practical limit’ that attaches to that ground for jurisdictional action.62 * * * With this broad background in mind, let us now turn to the Article VI of the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, which provides that ‘[p]ersons charged with genocide or any of the other acts enumerated in Article III [of the Convention] shall be tried by a competent tribunal of the State in the territory of which the act was committed or by a competent international tribunal’.63 The Genocide Convention thus envisages separate possibilities for the trial of génocidaires: this will either be undertaken at the state level or at the international level (i.e. ‘by a competent international tribunal’).64 The prosecutorial obligation contained in Article VI of the Genocide Convention is thereby moderated—but only in respect of the means towards a preordained ending. We shall not engage this latter option too much further in our analysis,65 other than to say that the International Criminal Court can be understood to be one realization of this latter possibility floated by the Genocide Convention.66 Of more immediate concern to us is what the Genocide Convention demands of its States Parties: there is no question that Article VI stipulates a prosecutorial obligation on those States Parties,67 but it should not go unnoticed that the provision does not specifically require that persons committing genocide ‘shall be’ charged ‘in the territory

60 Ibid. 61 Ibid. Though not necessarily akin to the principle of territoriality: see the discussion accompanying nn. 52 and 53. 62 n. 57 (an approach that has informed the principle of territoriality itself (n. 47)). 63 78 UNTS 276. 64 On the ‘compromise’ of Art. VI as against ‘far-reaching world law’ and any accompanying institutional architecture, see Jost Dülffer, ‘The United Nations and the Origins of the Genocide Convention 1946–1948’, in Christoph Safferling and Eckart Conze (eds.), The Genocide Convention Sixty Years after its Adoption (The Hague: TMC Asser Press, 2010), 55, 66. 65 See further Shaw (n. 25), 298. 66 James Crawford, ‘The ILC’s Draft Statute for An International Criminal Tribunal’, American Journal of International Law 88 (1994): 140, 144 (‘Article VI of [the Genocide] Convention can be read as allowing a state party which is also a party to a statute of an international criminal court to confer jurisdiction on that court in respect of an accused person, even though that state is not the place where the crime was committed. The Draft Statute relies on this reading.’). Higgins contemplates that this aspect of Art. VI of the Genocide Convention carries ‘a potential universal jurisdiction’: (n. 22), 62 (original emphasis). 67 See the discussion e.g. in William A. Schabas, Genocide in International Law: The Crime of Crimes, 2nd edn (Cambridge: Cambridge University Press, 2009), 447.

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262 Dino Kritsiotis of which the act was committed’;68 the exact stipulation is that, once so charged, such persons ‘shall be tried’ in the territory of the relevant state.69 On its surface, therefore, the obligation contained in Article VI appears to relate to the continuation and completion of a criminal process once it has been started, although this reading would surely be out of sorts with what that provision (and the Convention as a whole) was being designed to do.70 Furthermore, within the Convention, there is no tempering of that obligation by reference to the principle of aut dedere aut judicare (extradite or prosecute):71 any optionality States Parties have or retain seems to rest on the two alternative modalities listed in Article VI rather than on preferences different States Parties may have in respect of each other.72 Read together with other provisions of the Convention, such as Article I (‘[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish’) and Article V (‘[t]he Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention and, in particular, to provide effective penalties for persons guilty of genocide or of any of the other acts enumerated in Article III’), the Genocide Convention therefore imposes an obligation on States Parties to make provision in their domestic orders for prosecuting those who have committed the crime of genocide on their territory.73 It is worth recalling that this undeniable focus on territory 68 By way of contrast, earlier iterations of this provision read as follows: ‘Genocide may be punished by any competent tribunal of the state, in the territory of which the crime is committed or the offender is found, or by such an international tribunal as may be established’: UN Doc. E/AC.25/9 (China); ‘Genocide shall be punished by any competent tribunal of the State in the territory of which the crime is committed or by a competent international tribunal’: UN Doc. E/AC.25/SR.18, 10 (United States). 69 See e.g. the position of Ben Saul, ‘The Implementation of the Genocide Convention at the National Level’, in Paola Gaeta (ed.), The UN Genocide Convention: A Commentary (Oxford: Oxford University Press, 2009), 58, 62 (‘the Genocide Convention does not contain an express provision setting out the mandatory or optional bases of exercising jurisdiction over genocide’). 70 See further Schabas (n. 67), 447. And the obligation to punish génocidaires very much seemed to affect the early discussions and planning: UN Doc. E/AC.25/3. Also in this respect, consider the proposal of the Soviet Union for this provision: ‘The High Contracting Parties pledge themselves to prosecute the persons guilty of genocide, as defined in the present Convention, as responsible for criminal offences, submitting the cases of these crimes committed within the territory under their jurisdiction for trial by national courts in accordance with the national jurisdiction of that country’: UN Doc. E/AC.25/SR.20, 2. 71 William A. Schabas, An Introduction to the International Criminal Court, 5th edn (Cambridge: Cambridge University Press, 2017), 118. See further Kriangsak Kittichaisaree, The Obligation to Extradite or Prosecute (Oxford: Oxford University Press, 2018); M. Cherif Bassiouni and Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Dordrecht/London/Boston: Martinus Nijhoff Publishers, 1995), and Raphaël van Steenberghe, ‘The Obligation to Extradite or Prosecute’, Journal of International Criminal Justice 9 (2011): 1089. 72 See however Schabas (n. 67), 475 (‘the combination of articles I, IV, V, VI and VIII might be read to imply such an obligation. Pursuant to article VI, States having territorial jurisdiction “should” bring to trial persons suspected of committing genocide. In other cases, article VII imposes an obligation to extradite’). 73 Note that the Harvard Research in International Law was conceived to mark out the competence of states under international law ‘to prosecute and punish for crime’: Art. 1(b) of the Draft Convention.

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Establishment and Change through Treaties 263 within Article VI of the Convention74 confirms the rejection of the principle of universal jurisdiction in the design of the Convention even though this had garnered respectable support from a broad range of quarters: Saudi Arabia had proposed, for example, that ‘[a]cts of genocide shall be prosecuted and punished by any State regardless of the place of the commission of the offence or of the nationality of the offender, in conformity with the laws of the country prosecuting’;75 China had presented a draft that specified that ‘[g]enocide may be punished by any competent tribunal of the state, in the territory of which the crime is committed or the offender is found, or by such an i nternational tribunal as may be established’;76 and Iran, for its part, proposed an amendment that would include the prosecution of génocidaires ‘by tribunals other than those of the States in the territories of which the act was committed, if they have been arrested by the authorities of such States, and provided no request has been made for their extradition’.77 Furthermore, it should also be said that the Genocide Convention ‘stops short’ of incorporating the principle of aut dedere aut judicare.78 If this indeed represents a correct reading of the first part of Article VI of the Convention,79 it would involve an invocation of the territorial principle of jurisdiction See also n. 2, 467 (jurisdiction is used to describe ‘the international capacity to prosecute and punish for crime generally’). And also ibid., 468: ‘The competence to be determined is the competence “to prosecute and punish for crime.” “Prosecute,” it should be understood, includes all the stages in a penal proceeding, from preliminary investigation, through trial, to final adjudication on appeal in the tribunal of last resort. “Punish” includes both the execution of sentence and the remission of penalty.’ 74 Significant, too, from the perspective of Art. XII of the Convention: ‘Any Contracting Party may at any time, by notification addressed to the Secretary-General of the United Nations, extend the application of the present Convention to all or any of the territories for the conduct of whose foreign relations that Contracting Party is responsible.’ See further Marko Milanovic, ‘Territorial Application of the Genocide Convention and State Succession’, in Paola Gaeta (ed.), The UN Genocide Convention: A Commentary (Oxford: Oxford University Press, 2009), 473, and also A. W. B. Simpson, Human Rights and the End of Empire (Oxford: Oxford University Press, 2001), 288–91. 75 UN Doc. A/C/6/86. 76 UN Doc. E/AC.25/9. The similarity with Art. VI of the Genocide Convention—the duality of ‘any competent tribunal of the state’ and ‘such as international tribunal as may be established’—is duly noted but so too is the principal difference: the jurisdiction is not limited to any competent tribunal of the state in territory of which the crime is committed, but it is extended to the territory in which the offender is found. 77 UN Doc. A/C. 6/218. See also Schabas (n. 67), 476. For further discussion, see Mitsue Inazumi, Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes under International Law (Antwerp: Interstitia, 2005), 59–61. 78 Schabas (n. 67), 475. See also UN Doc. A/CN.4/SER.A/1993/Add.1 (Part 2), 110. Though consider the interpretation of Eric David, Principes de droit des conflits armés, 2nd edn (Brussels: Bruylant, 1994), 667–8 (reliance on Art. I of the Genocide Convention (‘[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish’)). The key comparator here, of course, is the Geneva Conventions (n. 179). 79 There had been significant opposition to any embrace of the principle of universality, including by the United States, the Soviet Union, the United Kingdom, France, and India: See further Schabas (n. 67), 411–14 (noting the equivocal support for universal jurisdiction from of Venezuela and Poland). See also Orna Ben-Naftali, ‘The Obligations to Prevent and to Punish Genocide’, in Paola Gaeta (ed.), The UN Genocide Convention: A Commentary (Oxford: Oxford University Press, 2009), 27, 47.

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264 Dino Kritsiotis that moves us firmly out of the realm of sovereign freedom, choice and discretion and into the realm of required action: the reference to the imperative (‘shall be tried’) in that provision means that there is no option but for States (Parties) to adopt national legislation with respect to genocides that are committed on their territory. On this, there can be no demur: the appropriate domestic legislative framework would need to be put in place for genocide charges and trials to occur given the circumstances mentioned in the Convention.80 We might therefore posit that the Genocide Convention is an instance of mandatory territoriality,81 and a celebrated manifestation at that.82 Futhermore, the differentiation between States and States Parties has been admitted in this analysis because Article VI of the Genocide Convention is not—at least, not explicitly— addressed to States Parties and to States Parties alone: it is formulated in much more embracing terms for it speaks of trial by ‘a competent tribunal of the State in the territory of which the act was committed’.83 In consequence, it has been said that, ‘[u]niquely in the Convention, Article VI uses the word “state” without further specification’,84 and that it is suggestive of the possible ‘universal reach’ of that particular provision.85 80 See Arts. V and VI of the Convention. 81 See further Brigitte Stern, ‘Immunities for Heads of State: Where Do We Stand?’, in Matt Lattimer and Philippe Sands (eds.), Justice for Crimes against Humanity (Oxford/Portland, OR: Hart Publishing, 2003), 73, 95 fn. 67 (‘the Genocide Convention only provides for compulsory territorial jurisdiction’). 82 Cf. Art. 2(1) of the 1923 International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications, 27 LNTS 214, which provides: Persons who have committed an offence falling under Article 1 shall be amenable to the courts of the Contracting Party in whose territories the offence, or any of the constitutive elements of the offence, was committed. They shall also be amenable, when the laws of the country shall permit it, to the courts of the Contracting Party whose nationals they are, if they are found in its territories, even if the constitutive elements of the offence were committed outside such territories. This provision is directed towards ‘[p]ersons who have committed an offence’ under the Convention and adopts an unmistakable embrace of territoriality (‘in whose territories the offence . . . was committed’), and broadly so (‘or any of the constituent elements of the offence’); it is enjoined by the obligation contained in Art. 1—an obligation on the High Contracting Parties to ‘take all measures to discover, prosecute and punish any person engaged in committing any of the [Convention] offences’. Evidently, ‘that instrument requires application of the territorial principle and authorizes, but does not require, application of the nationality principle’: see Joseph J. Lambert, Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979 (Cambridge: Grotius Publications, 1990), 136. No doubt the amenability of relevant persons under Art. 2 can only occur, can only be brought to fruition, by virtue of the arrangements anticipated by Art. 1 of the Convention. Also consider in this respect Art. 2 of the 1937 League of Nations Convention for the Prevention and Punishment of Terrorism (‘Each of the High Contracting Parties shall, if this has not already been done, make the [designated] acts committed on his own territory criminal offences if they are directed against another High Contracting Party and if they constitute acts of terrorism within the meaning of Article I’ of that Convention): Doc. C.546.M.383.1937.V, 19 L.N.O.J. 23 (1938). See further Ben Saul, ‘The Legal Response of the League of Nations to Terrorism’, Journal of International Criminal Justice 4 (2006): 78. 83 n. 63. To be sure, Art. VI does refer to the Contracting Parties of the Convention, but only ‘with respect to those Contracting Parties which shall have accepted [the] jurisdiction’ of the international penal tribunal mentioned there. 84 Christian J. Tams, Lars Berster, and Björn Schiffbauer, Convention on the Prevention and Punishment of the Crime of Genocide: A Commentary (Munich/Oxford/Baden-Baden: C. H. Beck/Hart/Nomos, 2014), 241. And also at 245: Art. VI is ‘the only provision addressing literally every state in the world’. 85 Ibid., 245.

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Establishment and Change through Treaties 265 However, the truth is that Article VI is not that exceptional to be framed in this way in the Convention,86 but this matter should not detract from the possibility that this wording might make this new regime—this new jurisdictional regime87—more amenable to endorsement as a matter of custom at some point further down the line.88 More recently, the obligation contained in Article VI of the Convention has come under examination in Case Concerning Application of the Convention on the Prevention and Punishment of Genocide, where the International Court of Justice recalled that the genocide occurring in Srebrenica of July 1995 ‘was not carried out in [the] territory [of Serbia and Montenegro]’.89 In its judgment of February 2007, the Court maintained that ‘[e]ven if Serbian domestic law granted jurisdiction to its criminal courts to try those accused, and even supposing such proceedings were compatible with Serbia’s other international obligations, an obligation to try the perpetrators of the Srebrenica massacre in Serbia’s domestic courts cannot be deduced from Article VI’,90 and it proceeded to observe: Article VI only obliges the Contracting Parties to institute and exercise territorial criminal jurisdiction; while it certainly does not prohibit States, with respect to genocide, from conferring jurisdiction on their criminal courts based on criteria other than where the crime was committed which are compatible with international law, in particular the nationality of the accused, it does not oblige them to do so.91

With this statement, the Court committed itself to delineating what Article VI of the Genocide Convention ‘obliges’ as a matter of law,92 but the Court was also acknowledging 86 Art. III, for example, refers to ‘[t]he following acts [that] shall be punishable’ and Art. IV provides that ‘[p]ersons committing genocide or any of the other acts enumerated [in the previous provision] shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals’. Cf. Arts. I, V, VII, VIII, IX, XII, XIV and XV. 87 See further Bunyan Bryant, ‘The United States and the Genocide Convention: Part I: Substantive Scope of the Convention’, Harvard International Law Journal 6 (1975): 686, 687–8. 88 Note that in North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (1969) ICJ Rep. 3, 41, the International Court of Justice made reference to ‘a norm-creating provision which has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law’ (para. 71). In exploring the matter of so-called ‘objective regimes’, it is useful to consider Bruno Simma, ‘The Antarctic Regime as a Treaty Regime Providing for an Objective Regime’, Cornell International Law Journal 19 (1986): 189. 89 Case Concerning Application of the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (2007) ICJ Rep. 43, 226 (para. 442). 90 Ibid. 91 Ibid. 92 Following on from the emphasis awarded to territoriality by the Court in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) (1996) ICJ Rep. 595, 615–16 (para. 31) (‘as to the territorial problems linked to the application of the Convention, the Court would point out that the only provision relevant to this, Article VI, merely provides for persons accused of one of the acts prohibited by the Convention to “be tried by a competent tribunal of the State in the territory of which the act was committed . . . ” ’). However, later in the same paragraph, and after citing from Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) (1951) ICJ Rep. 15, 23, in respect of the object and purpose of the Genocide Convention, the Court concluded ‘that

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266 Dino Kritsiotis in a brief aside other possibilities for jurisdiction action apart from that conventional obligation. Yet, subsequent to this ruling, there has been some suggestion in the literature that the Genocide Convention ought to be interpreted as setting up a ‘jurisdictional regime over perpetrators of genocide [which] includes an obligation to exercise universal jurisdiction, albeit one limited by certain conditions’.93 The basis for this approach would appear to stem from ‘a teleological reading of Article VI’ of the Convention94—an intratextual or ‘joint reading’ of the Convention as a whole,95 if you will—that places much reliance on both of the obligations contained in Article I of the Convention, where Contracting Parties undertake to prevent as well as to punish genocide.96 Such an obligation—of mandatory universality—would of course take us beyond the ‘territorial bent’ of the Article VI obligation as formulated,97 but it is curious that this claim has been accompanied by the assertion that ‘[i]f the obligation to punish stems from Article I [of the Convention], then Article VI should be construed as merely setting minimum jurisdictional obligations’—note the reference to obligations in the plural here—‘as well as jurisdictional options, for complying with Article I’.98 What are these jurisdictional obligations exactly?99 And when exactly did they—when did each—arise?100 And if they the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention’. 93 Ben-Naftali (n. 79), 48. 94 Ibid. Though, to be sure, the full thrust of the argument is as follows: ‘a teleological reading of Article VI in the light of Article I of the Convention as well as in the light of later normative developments in both conventional and customary international law, supports the conclusion that the jurisdictional regime over perpetrators of genocide includes an obligation to exercise universal jurisdiction, albeit one limited by certain conditions’: ibid. Furthermore, ‘an expansive interpretation is particularly required when otherwise the object and purpose of the treaty may be frustrated’: at 49. These are the ‘other sources’ for an obligation to which Ben-Naftali earlier refers: at 48. Policy considerations also make an entrance in this regard: at 49. And, further, ‘the peremptory nature of the prohibition of genocide, principles of treaty interpretation emphasizing the importance of harmonization, and the principle of universality of human rights, all decree such broad reading’: at 51. 95 Ibid., 49. 96 Amongst other provisions, it must be said: ibid. And hence the title of Ben-Naftali’s ‘The Obligations to Prevent and to Punish Genocide’ (n. 79). To similar effect: ‘it might be thought implicit in a Convention for the repression of genocide that it would ordinarily be necessary for national legislation to establish jurisdiction over the offences wherever they occur, including through extraterritorial prescriptive jurisdiction pursuant to the universality principle’. See Saul (n. 69), 68, and further David (n. 78). 97 Ben-Naftali (n. 79), 29. 98 Ibid., 49. The relationship between Arts. I and VI of the Genocide Convention is set up very early in the analysis, where Art. I ‘serves as both a source and an “umbrella” for the other provisions: the latter originate from Article I but do not exhaust it’: ibid., 28–9. See also the finding of the Court in its 2007 judgment, Case Concerning Application of the Convention on the Prevention and Punishment of Genocide (n. 89, 113 (para. 165)), that ‘Article I does impose distinct obligations over and above those imposed by other Articles of the Convention.’ 99 An earlier reference had been made to ‘the minimal scope of the obligation which is expressed in the first part of Article VI of the Convention’: ibid., 47. 100 Especially in view of the ‘later developments in both conventional and customary law’ where ‘the jurisdictional regime over perpetrators of genocide includes an obligation to exercise universal jurisdiction, albeit one limited by certain conditions’: ibid., 48; also, ‘universal jurisdiction, albeit not a “pure”

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Establishment and Change through Treaties 267 are to include mandatory universality, what purpose, if any, exists for the aforementioned jurisdictional options? Granted, the meaning of treaties and their provisions can change over time,101 so there is every reason to believe that ‘the scope of the obligation remains open to change, expansion, and indeed to debate’.102 When that is to occur, however, and the evidentiary threshold by which it is to occur if it does occur are matters, too, of high contention, and these matters must surely contend with the ‘overall structure’ and terms of the Genocide Convention itself.103 Furthermore, a ‘joint reading’104 of the Genocide Convention of the kind proposed would dictate that there is at least some temporal coincidence between the meaning of each of the relevant provisions of the Convention,105 quite apart from the prompts that ‘other sources’ of normativity evince on mandatory universality.106 Finally, it is to be hoped that a more acute sense will emerge of whether the evidentiary threshold is to be moderated according to whether it is jurisdictional ‘obligations’ as opposed jurisdictional ‘options’ that have ensued for the Genocide Convention.107 * * * Such is the conventional arrangement that attaches to the crime of genocide under international law—at least, such is the conventional arrangement that has applied since 12 January 1951, the date on which the Genocide Convention entered into force.108 Consider, in contrast, the situation before the Genocide Convention in respect of the crime of genocide: Israel enacted the 1950 Nazi and Nazi Collaborators (Punishment) Law which specifically addressed acts ‘done, during the period of the Nazi regime, in an one, over core crimes has become obligatory rather than merely permissive if the exercise of territorial jurisdiction is frustrated’: at 49; and ‘an obligation to exercise complementary universal jurisdiction over international crimes in general and over genocide in particular, enjoys customary status’: at 51. 101 See esp. Irina Buga, Modification of Treaties by Subsequent Practice (Oxford: Oxford University Press, 2018). 102 Ben-Naftali (n. 79), 47. 103 Which, it has been argued, ‘supports’—as originally devised, it therefore does not require—the principle of aut dedere aut judicare: Lee A. Steven, ‘Genocide and the Duty to Extradite or Prosecute: Why the United Nations Is in Breach of Its International Obligations’, Virginia Journal of International Law 39 (1998–9): 425, 460 (and positing that ‘the territorial jurisdictional provision in Article VI does not change the general jurisdictional rights and duties that states have under customary international law’). 104 Ben-Naftali (n. 79), 49. 105 Such has been done for the Genocide Convention’s obligation to prevent genocide: ‘[i]t has taken another European war, the war in the Balkans, to resurrect the duty to prevent genocide from the obligation of moral hopes to the viability of a legal obligation’: Ben-Naftali (n. 79), 34–5. 106 n. 94 (including whether ‘a teleological reading’ of the Convention is sufficient in and of itself to found this claim, or whether it is in addition to (‘as well as’) other ‘normative developments’: Ben-Naftali (n. 79), 48; these developments are later described as ‘further support’ for the view that universal jurisdiction over core crimes ‘has become obligatory’: at 49). 107 As per n. 98. 108 In accordance with Art. XIII of the Convention (ninetieth day following the date of deposit of the twentieth instrument of ratification or accession). See further William A. Schabas, ‘Retroactive Application of the Genocide Convention’, University of St. Thomas Journal of Law and Public Policy 4 (2010): 36.

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268 Dino Kritsiotis enemy country’, that is to say for the period before the Genocide Convention was even conceived.109 Having signed and ratified the Convention,110 Israel went on to adopt this legislation in August 1950—though in doing so, it will be noted that it framed that legislation so as to have retroactive effect.111 Be this as it may, what is important for our purposes is the relation of the Nazi and Nazi Collaborators (Punishment) Law with public international law as it stood at that point in time, since it was argued in Attorney General v Eichmann that the law was in fact ‘in conflict with international law, and that therefore it cannot vest jurisdiction’ of any kind.112 The District Court of Jerusalem had no difficulty in dismissing this challenge, making clear that: The power of the State of Israel to enact the Law in question or Israel’s ‘right to punish’ is based, with respect to the offences in question, from the point of view of international law, on a dual foundation: The universal character of the crimes in question and their specific character as being designed to exterminate the Jewish people.113

In other words, the District Court proceeded on parallel jurisdictional premises—the ‘dual foundation’, as it called it—in public international law: it spoke of the ‘universal character of the crimes in question’,114 suggesting that the principle of universal jurisdiction was applicable on the facts before it,115 where ‘[t]he jurisdiction to try crimes under international law is universal’.116 It was on this basis that a ‘right to punish’ was founded,117 separate to the Genocide Convention’s provision of ‘territorial jurisdiction as a compulsory 109 5710–1950, 2 LSI (Isr.). The legislation has been reproduced by Israel’s Ministry of Foreign Affairs (http://www.mfa.gov.il/mfa/mfa-archive/1950–1959/pages/nazis%20and%20nazi%20collaborators%20 -punishment-%20law-%20571.aspx). Consider Schabas’s observation about ‘the punishability of the crime of genocide under general international law or customary international law’: Schabas (n. 108), 42. And also at 49: ‘[a]n international crime only exists when it is actively addressed by a criminal justice system within an international legal framework’. 110 Signed 17 August 1949; ratified 9 March 1950. 111 And so noted by the District Court of Tel Aviv in Honigman v Attorney General (1951) ILR 542, 543: ‘this law is fundamentally different in its characteristics, in the legal and moral principles underlying it and in its spirit, from all other criminal enactments usually found on the Statute books. The Law is retroactive and extra-territorial and its object, inter alia, is to provide a basis for the punishment of crimes which are not comprised within the criminal law of Israel, being the special consequences of the Nazi regime and its persecutions.’ See further Schabas (n. 108), 46. The term ‘genocide’ was not itself used in the legislation (which instead made reference to crimes against the Jewish people, crimes against humanity, and war crimes). On the idea of ‘no substantive retroactivity’, see Hans W. Baade, ‘The Eichmann Trial: Some Legal Aspects’, Duke Law Journal (1961): 400, 413. 112 Attorney General v Eichmann (1962) 36 ILR 5, para. 10. 113 Ibid., para. 11. 114 Or ‘crimes which offended the whole of mankind and shocked the conscience of nations [and] are grave offences against the law of nations itself (delicta juris gentium)’: ibid., para. 12; and crimes which ‘are in essence offences against the law of nations’: at para. 16. 115 The District Court admitted as much: ‘The crimes of genocide committed against the Jewish People and other peoples were crimes under international law. It follows, therefore, in the light of the acknowledged principles of international law, that the jurisdiction to try such crimes is universal’: ibid., para. 19. 116 Ibid., para. 12. 117 Ibid., para. 11.

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Establishment and Change through Treaties 269 minimum’.118 And though the Convention might be thought to carry ‘a grave defect’ in omitting ‘a provision establishing the principle of universality’, the District Court concluded that ‘there is nothing in this defect to make us deduce any tendency against the principle of the universality of jurisdiction with respect to the crime in question’.119 The approach of the District Court was rooted firmly and explicitly within customary international law: It is clear that the reference in Article 6 [of the Genocide Convention] to territorial jurisdiction . . . is not exhaustive, and every sovereign state may exercise its existing powers within the limits of customary international law, and there is nothing in the adherence of a state to the Convention to waive powers which are not mentioned in Article 6. It is in conformity with this view that the Law for the Prevention and Prevention and Punishment of Genocide, 5710-1950, provided in section 5 that ‘any person who committed an act outside of Israel which is an offence under this law may be tried and punished in Israel as though he committed the act inside Israel’.120

Importantly, the intimations here are of a permissive universality under public international law existing independent of the Genocide Convention—a ‘right’ to punish following a trial that was not dependent on the territorial venue of the offence121—where customary international law did not require Israel to act in this way but permitted this course of action if it so chose. It is in the very same terms of entitlement that the District Court then had recourse to the second jurisdictional premise of the ‘specific character’ of the crimes ‘as being designed to exterminate the Jewish people’,122 which was treated as ‘[n]o less important from the point of view of international law’.123 This focus on the Jewish people as the victim of the crime (or crimes) might be thought to bring to the fore the principle of passive personality—or, more properly, of permissive passive personality—but later in its judgment, the District Court made reference to ‘the special connection the State of Israel has with such crimes, seeing that the People of Israel (Am Yisraeli)—the Jewish People (Ha’am Ha’Yehudi—to use the term in the Israeli legislation) constituted the target and the victim of most of the crimes in question’.124 This connection with the state (of Israel) appears to propel the principle of protective (security) jurisdiction into the mix,125 an impression that is reinforced by what the District Court then went on to say: The State of Israel’s ‘right to punish’ the Accused derives, in our view, from two cumulative sources: a universal source (pertaining to the whole of mankind) which 118 Ibid., para. 25. 119 Ibid. 120 Ibid. 121 Under s. 5 of the Nazi and Nazi Collaborators (Punishment) Law (n. 109). See further Baade (n. 111), 417–18. 122 Attorney General v Eichmann (n. 112), para. 11. 123 Ibid., para. 30. 124 Ibid. 125 Christopher Staker, ‘Jurisdiction’, in Malcolm D. Evans (ed.), International Law, 5th edn (Oxford: Oxford University Press, 2018), 289, 301 (‘when essential interests of the State are at stake States need to, and will, act in order to preserve themselves’).

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270 Dino Kritsiotis vests the right to prosecute and punish crimes of this order in every state within the family of nations; and a specific or national source which gives the victim nation the right to try any who assault its existence.126

At issue in this passage is the framing of the proposition of permissive protective (security) jurisdiction, but since the state of Israel did not exist at the time of the said crime (or crimes) it has become more difficult to sustain this proposition,127 and we notice a certain nuanced privileging of the principle of universality—or permissive universality—by the Supreme Court of Israel when it issued in judgment in Eichmann in May 1962: Not only are all the crimes attributed to the Appellant of an international character, but they are crimes whose evil and murderous effects were so widespread as to shake the stability of the international community to its very foundations. The State of Israel, therefore, was entitled, pursuant to the principle of universal jurisdiction, and acting in the capacity of guardian of international law and agents of it enforcement, to try the Appellant. This being the case, it is immaterial that the State of Israel did not exist at the time the offences were committed.128

III. On Universality Perhaps it is the principle of universality that epitomizes the outermost reaches of extraterritorial jurisdictional action and thinking: here, it is the ‘nature of the act’ that ‘entitles a state to exercise its jurisdiction to apply its law, even if the act has occurred outside its territory, even if it has been perpetrated by a non-national, and even if nationals have not been harmed by the acts’.129 It will be appreciated how this formulation takes as 126 Attorney General v Eichmann (n. 112), para. 30. 127 Geoff Gilbert, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms (The Hague: Martinus Nijhoff Publishers, 1998), 100 (‘[t]he reasoning on the facts may be a little strained’). See also L. C. Green, ‘The Eichmann Case’, Modern Law Review 23 (1960): 507, 514. Counsel for Eichmann had indeed argued that the protective principle ‘is designed to protect only an existing state’: Attorney General v Eichmann (n. 112), para. 36. 128 (1961) 36 ILR 277 (para. 12). Though the Supreme Court went on to add this: We wish to add one further observation. In regard to the crimes directed against the Jews, the District Court found additional support for its jurisdiction in the connecting link between the State of Israel and the Jewish People, including that between the State of Israel and the Jewish victims of the Catastrophe, and the National Home in Palestine, as explained in its judgment. It therefore upheld its criminal jurisdiction also by virtue of the protective principle and the principle of passive personality. It should be clear that we fully agree with every word said by the Court on this subject in . . . its judgment. 129 Higgins (n. 22), 56–7. See further Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th edn (London: Routledge, 1997), 112–13.

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Establishment and Change through Treaties 271 its immediate cue a particular (but unidentified) act (or crime), but then quietly shifts to the limitations of the other known principles for jurisdictional action—namely, territoriality, nationality, and passive personality.130 And it does so in order to emphasize the essential optionality of universal jurisdiction: it exists as an entitlement or ‘right to exercise jurisdiction’ apparently controlled by a select series of offences that ‘are very limited in number’,131 such that a discretion is implicated for states to author and adopt legislation on this ground.132

130 See further O’Keefe (n. 20), and also Eugene Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’, Harvard International Law Journal 45 (2004): 183. Christopher Staker has written of the ‘two strands’ which are ‘running together to make up the universal principle’: Staker (n. 125), 302 (‘[o]ne is the strand that is indeed made up of heinous crimes . . . [and] [t]he second is crimes that are serious, and which might otherwise go unpunished.’). Piracy was specifically mentioned under the rubric of universal jurisdiction in the Draft Convention on Jurisdiction with Respect to Crime (Art. 9); a second provision (Art. 10) was also devoted to universal jurisdiction but, in full, it provided as follows: A State has jurisdiction with respect to any crime committed outside its territory by an alien, other than the crimes mentioned in Articles 6 [persons assimilated to nationals], 7 [protection— security of the state], 8 [protection—counterfeiting] and 9 [universality—piracy], as follows: (a) When committed in a place not subject to its authority but subject to the authority of another State, if the act or omission which constitutes the crime is also an offence by the law of the place where it was committed, if surrender of the alien for prosecution has been offered to such other State or States and the offer remains unaccepted, and if the prosecution is not barred by lapse of time under the law of the place where the crime was committed. The penalty imposed shall in no case be more severe than the penalty prescribed for the same act or omission by the law of the place where the crime was committed. (b) When committed in a place not subject to the authority of any State, if the act or omission which constitutes the crime is also an offence by the law of a State of which the alien is a national, if surrender of the alien for prosecution has been offered to the State or States of which he is a national and the offer remains unaccepted, and if prosecution is not barred by lapse of time under the law of a State of which the alien is a national. The penalty imposed shall in no case be more severe than the penalty prescribed for the same act or omission by the law of a State of which the alien is a nation. (c) When committed in a place not subject to the authority of any State, if the crime was committed to the injury of the State assuming jurisdiction, or one of its nationals, or of a corporation or juristic person having its national character. (d) When committed in a place not subject to the authority of any State and the alien is not a national of any State. 131 Higgins (n. 22), 58 (as Higgins writes, ibid.: ‘[t]he requirement is that these are acts which are commonly treated as criminal in the local jurisdiction of most states, and which they perceive also as an attack upon international order’). 132 Ibid., 56: ‘[i]nternational law permits the exercise of jurisdiction in respect of certain offences against the international community’. See too Malanczuk (n. 129), 113 (‘universal jurisdiction in its broad sense [is] the power of a state to punish certain crimes’), and Philip Alston and Ryan Goodman, International Human Rights (Oxford: Oxford University Press, 2012), 1123. As such, it would appear to demarcate the provenance of the principle of territorial jurisdiction which ‘does not apply to certain offences, generally regarded as offences of an international character of serious concern to the international community as a whole, which is accepted may be punished by whichever state has custody of the offender’: Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law, I: Peace, 9th edn (London/New York: Longman, 1992), 469.

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272 Dino Kritsiotis Piracy is often cited as the ‘most commonly accepted example’ for universal jurisdiction,133 with Article 9 of the Draft Convention of the Harvard Research in International Law providing that ‘[a] State has jurisdiction with respect to any crime committed outside its territory by an alien which constitutes piracy by international law’.134 The crime has now been defined in modern form in Article 101 of the 1982 UN Convention on the Law of the Sea (UNCLOS),135 following the stipulation that ‘[a]ll States’—note: not just the States Parties to the Convention,136 but all States137—‘shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State’.138 This duty of cooperation is pressed into service at other points in the Convention to be sure,139 but it must be said that its precise relation to the functioning of the principle of universal jurisdiction—or, more accurately, to the notion of permissive universality as outlined in these pages140—is not made fully apparent in the Convention itself.141 Evidently, states (Parties) are placed under a legal obligation of sorts,142 but that obligation is certainly not akin to that specified for the transportation of slaves in Article 99 of the Convention, where ‘[e]very 133 Higgins (n. 22), 58. See also Jennings (n. 43), 156 (piracy as an ‘obvious example’, drawing a distinction between ‘the suppression of crime [which] is an interest common to all States and to all mankind’ or hostis humani generis and ‘international crimes’, like traffic in women and children and drugs: piracy satisfies both of these counts), and Greig (n. 23), 213 (arguing that only in the case of piracy is the principle of universality ‘generally recognized’, though ‘some writers suggest that genocide, perhaps war crimes and slave trading fall within the same category’) and further at 333. 134 Draft Convention (n. 20). Roger O’Keefe frames the concept of universal jurisdiction as the ‘authority under international law’ of a state ‘to regulate the conduct of persons, natural and legal’: ‘Universal Jurisdiction: Clarifying the Basic Concept’, Journal of International Criminal Justice 2 (2004): 735, 736. 135 1833 UNTS 3. Part of the definition of piracy is that it is committed ‘for private ends by the crew or the passengers of a private ship or a private aircraft’ (Art. 101(a)). See further Dino Kritsiotis, ‘The Contingencies of Piracy’, California Western International Law Journal 41 (2011): 305. Note that Art. 102 of the Convention goes on to provide that acts of piracy ‘committed by a warship, government ship or government aircraft whose crew has mutinied and taken control of the ship or aircraft are assimilated to acts committed by a private ship or aircraft’. 136 Or States Parties, as announced in the preamble to UNCLOS (n. 135) and as defined in Art. 1(2)(1). See further Arts. 139, 143(3), 144(2), 151(1)(a), 151(8), 153(4), by way of counter-example. 137 At this point, it is worth referring back to the precise formulation of Article VI of the Genocide Convention (n. 63). 138 UNCLOS, Art. 100 (n. 135). 139 See e.g. ibid., Art. 108(1) (‘All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions’); Art. 109(1) (‘All States shall cooperate in the suppression of unauthorized broadcasting from the high seas’); and Art. 117 (‘All States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas’). 140 See the text accompanying n. 132. 141 Robin Churchill concludes that ‘UNCLOS has nothing to say about legislative jurisdiction’: Robin Churchill, ‘The Piracy Provisions of the UN Convention on the Law of the Sea: Fit for Purpose?’, in Panos Koutrakos and Achilles Skordas (eds.), The Law and Practice of Piracy at Sea: European and International Perspectives (Oxford/Portland, OR: Hart Publishing, 2014), 9, 23. 142 Note the qualification of ‘to the fullest possible extent’. For further discussion, see Margaret A. Young and Sebastián Rioseco Sullivan, ‘Evolution through the Duty to Cooperate: Implications of the Whaling Case at the International Court of Justice’, Melbourne Journal of International Law 16 (2015): 1, 24–6.

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Establishment and Change through Treaties 273 State shall take effective measures to prevent and punish the transport of slaves in ships authorized to fly its flag and to prevent the unlawful use of its flag for that purpose’.143 Be this as it may, in presenting piracy as the ‘classic example’ of universal jurisdiction, it has been said that ‘[t]his jurisdiction was, of course, exercised on the high seas and not as an enforcement jurisdiction within the territory of a non-agreeing State. But this historical fact does not mean that universal jurisdiction only exists with regard to crimes committed on the high seas or in other places outside national territorial jurisdiction. Of decisive importance is that this jurisdiction was regarded as lawful because the i nternational community regarded piracy as damaging to the interests of all.’144 But what does it mean for jurisdiction to be ‘exercised’ in this context?145 Is piracy to be understood as an exercise of prescriptive jurisdiction or of ‘enforcement jurisdiction’,146 or is it to be regarded as both of these things? And what is the precise ‘temporal moment’ when universal jurisdiction can be said to be ‘in play’?147 With the prosecution of pirates in mind, Article 105 of UNCLOS provides that ‘[o]n the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board’.148 Article 105 then goes on to stipulate that ‘[t]he courts of the State which carried out the seizure may decide upon the penalties to be imposed’,149 and this, too, is framed on a permissive basis.150 We can appreciate why a provision of this order may have found its way into the 143 And rightly so given the premise of flag state jurisdiction: Richard A. Barnes, ‘Flag States’, in Donald R. Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea (Oxford: Oxford University Press, 2015), 304. Higgins singles out treaties which ‘indicate a general condemnation of slavery’ and advises a degree of caution—as these do not necessarily ‘contain any further element that would underpin a general norm of universal jurisdiction’: Higgins (n. 22), 58. 144 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (2002) ICJ Rep. 3, 81 (para. 61) (Sep. Op. Judges Higgins, Kooijmans, and Buergenthal). 145 Ibid. 146 Ibid. 147 Ibid., 79 (para. 54): Is the presence of the accused within the jurisdiction said to be required at the time the offence was committed? At the time the arrest warrant is issued? Or at the time of trial itself? An examination of national legislation, cases and writings reveals a wide variety of temporal linkages to the assertion of jurisdiction. This incoherent practice cannot be said to evidence a precondition to any exercise of universal criminal jurisdiction. The fact that in the past the only clear example of an agreed exercise of universal jurisdiction was in respect of piracy, outside of any territorial jurisdiction, is not determinative. 148 Art. 105 UNCLOS (n. 135). See further Jennings and Watts (n. 132), 753. 149 For a useful engagement with the import of this formulation, consider Irina Buga, ‘Between Stability and Change in the Law of the Sea Convention: Subsequent Practice, Treaty Modification, and Regime Interaction’, in Donald R. Rothwell et al. (n. 143), 46, 58. 150 Indeed, it has been observed that this provision ‘gives expression to the universal jurisdiction which any State can exercise against any pirate ship or aircraft’: Satya N. Nandan, et al. (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, III: Articles 86 to 132 and Documentary Annexes (The Hague: Martinus Nijhoff Publishers, 1995), 215. See further Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge: Cambridge University Press, 2009), 30–1 (‘[t]his implies a permissive, not mandatory, grant of universal jurisdiction and a choice of means as to how to co-operate to suppress piracy’).

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274 Dino Kritsiotis Convention151—pirates are not likely to make themselves amenable to the legal niceties of flag-state jurisdiction and really cannot be expected to submit to whichever authorities whensoever approached152—but the idea of seizure and ‘penalties to be imposed’ does assume that the requisite legislative arrangements will be in situ for prosecutions to be brought following apprehension.153 Furthermore, according to Article 110 of the Convention, warships are awarded a right of visit (involving boarding and inspection) of foreign ships if ‘there is a reasonable ground for suspecting that . . . the ship is engaged in piracy’.154 Taken together, these provisions might be thought to set down the foundations or framework for permissive enforcement jurisdiction in respect of piracy,155 and, in so doing, they may give cause to revisit and recast the received wisdom on the geographies of the competences of states more generally.156 * * * A much more radical iteration of the principle of universal jurisdiction can be found in the four Geneva Conventions of August 1949.157 Common Article 49/50/129/146 of these Conventions provides in full as follows: The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. 151 To similar effect, see Art. 19 of the 1958 Geneva Convention on the High Seas: 450 UNTS 11. 152 As Judge Ranjeva remarked in his Declaration in Case Concerning the Arrest Warrant of 11 April 2000 (n. 144), 56 (para. 6), ‘since piracy by definition involves the pirate’s denial and evasion of the jurisdiction of any State system, the exercise of universal jurisdiction enables the legal order to be established’. See further Guilfoyle (n. 150), 28: ‘Unlike almost all other offences, piracy does away with the requirement of flag-state consent prior to the boarding and seizure. All states thus have a common extraterritorial enforcement jurisdiction over piracy. The necessary corollary, common prescriptive jurisdiction over piracy on the high seas, is recognized as a matter of customary and conventional law.’ See also Buga (n. 149), 59. 153 Lawrence Azubuike, ‘International Law Regime Against Piracy’, Annual Survey of International and Comparative Law 15 (2009): 43. 154 Art. 110(1)(a) UNCLOS (n. 135). See also Art. 110(2). Art. 110 is applicable in the exclusive economic zone by virtue of Art. 58(2) UNCLOS, and these have been viewed as examples of ‘enforcement authority’ under the Convention: Nandan et al. (n. 150), p. 246. See also Art. 107 UNCLOS (‘[a] seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect’). 155 See further Churchill (n. 141), 9–11. At 28, Churchill refers to this as ‘arrest jurisdiction’, which accompanies the universal adjudicative jurisdiction of Art. 105 UNCLOS: ‘The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith.’ 156 See text accompanying n. 38. See also O’Connell (n. 37), 603, and O’Keefe (n. 134), 755. Art. 110 UNCLOS does not confine that provision to piracy: a warship’s right of visit applies equally to a ship engaged in the slave trade or unauthorized broadcasting (where the flag state of the warship has jurisdiction under Art. 109 UNCLOS); where the ship is without nationality or where the ship is flying a foreign flag or refusing to show its flag such that the ship is, in reality, of the same nationality as the warship. See Art. 110(1)(b)–(e) UNCLOS (n. 135). See also the provision on the right of hot pursuit: Art. 111. 157 1949 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS 31; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 UNTS 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, 75 UNTS 135; and Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287.

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Establishment and Change through Treaties 275 Each High Contracting Party shall be under the obligation to search for persons alleged to have committed or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.

The significance of this article is that it distinguishes between different forms of ‘war crime’: it calibrates certain war crimes as ‘grave breaches’ (for which it furnishes a particular system of jurisdiction for the High Contracting Parties of the Geneva Conventions) and then it specifies separate arrangements for ‘all acts contrary to the provisions of the present Convention other than the grave breaches’ defined in the Conventions.158 Whereas this latter cohort of war crimes is dealt with in terms of an obligation to ‘take measures necessary for the suppression of all [such] acts’ (third paragraph),159 the former cohort requires the enactment of ‘any legislation necessary to provide effective penal sanctions’ for such breaches (first paragraph).160 In truth, both of these formulations seem to indulge in some level of generality—‘any legislation necessary to provide effective penal sanctions’ and ‘measures necessary for the suppression of . . . acts contrary to the provisions of the present Convention’—appearing as they do in the section of the Conventions devoted to ‘repression of abuses and refractions’.161 158 As defined in Common Art. 49/51/130/147. This distinction between ‘breaches’ and ‘grave breaches’ is maintained in Art. 85(1) of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3. See further Jean S. Pictet (ed.), Commentary to Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva: ICRC, 1952), 370 (‘[v]iolations of certain of the detailed provisions of the Geneva Conventions might quite obviously be no more than offences of a minor or purely disciplinary nature, and there could be no question of providing for universal measures of repression in their case’). The Commentary had earlier mentioned that ‘[i]t was thought necessary to establish what these grave breaches were, in order to be able to ensure universality of treatment in their repression’. 159 Emphasis added. 160 An ‘unconditional obligation’ on High Contracting Parties, which has been described as ‘a clear and imperative measure for all States Parties’ in that it identifies the specific telos of ‘effective penal sanctions’—where ‘imprisonment is widely recognized as a central element in punishing [those] breaches’: Knut Dörmann et al. (eds.), Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Cambridge: Cambridge University Press, 2016), paras. 2839 and 2841. Cf. Art. 29(1) of the 1929 Geneva Convention on the Wounded and Sick, 118 LNTS 303 (‘[t]he Governments of the High Contracting Parties shall also propose to their legislatures should their penal laws be inadequate, the necessary measures for the repression in time of war of any act contrary to the provisions of the present Convention’). 161 For Geneva Convention (I) (Chapter IX) and Geneva Convention (II) (Chapter VIII); Geneva Convention (III) concerned the ‘execution’ of the Convention (Part VI); ditto Geneva Convention (IV) (Part IV) (n. 157).

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276 Dino Kritsiotis The situation is, however, transformed by the inclusion of the second paragraph of Common Article 49/50/129/146—but its requirements are confined to those war crimes which constitute grave breaches.162 To recall, part of the provision specifies that each High Contracting Party ‘shall be under the obligation to search for persons alleged to have committed or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts’, so there is here—in the second paragraph of the provision—an unmistakable attempt to move from the generality of the asseveration of the first paragraph into more considered, and more meaningful, detail as to the intended jurisdictional regime for grave breaches.163 We can contrast this with the notion of ‘suppression’ which informs the arrangements for ‘all acts contrary to the provisions of the present Convention other than grave breaches’ in the third paragraph: ‘suppression’, we learn, came to replace the term ‘repression/répression’ and that ‘[b]y using the word “suppression” in the English text, it was intended to signify that all necessary measures would be taken to prevent a recurrence of acts contrary to the Convention[s]’.164 Importantly, suppression extends to but also entails a much more expansive remit than legislative action by High Contracting Parties, who can elect ‘a wide range of measures’ to ‘ensure that violations of the Conventions are stopped and measures taken to prevent their repetition’.165 This is why this has been described as ‘a far-reaching provision’,166 for it affords considerable latitude to High Contracting Parties to ‘determine the best way’167 to ensure and realize the suppression of acts contrary to the Conventions other than grave breaches—including judicial or disciplinary proceedings, administrative or regulatory measures, and through the wide dissemination of the text of the Conventions.168 162 As defined in Common Art. 50/51/130/147 of the Geneva Conventions (n. 157). See also Arts. 11 and 85(3) and 85(4) of the First Additional Protocol (n. 158). 163 The 2016 Commentary (n. 160), paras. 2847–52, regards the second paragraph as part of the ‘practical implementation of the obligation to enact legislation’ as contained in the first paragraph. And, apparently, by virtue of this provision, ‘every party has legislative, adjudicatory, and enforcement jurisdiction over grave breaches of the Geneva Conventions, even if it has no connection to, and is not engaged in, the armed conflict or occupation during which the offense occurs’: Kenneth Randall, ‘Universal Jurisdiction under International Law’, Texas Law Review 66 (1988): 785, 785. 164 2016 Commentary (n. 160), para. 2895 (also: ‘[t]he word “suppression” was first translated as “redressement” (“correction”) in French before being changed to “faire cesser”: “prendra les mesures nécessaires pour faire cesser les actes contraires aux dispositions de la présente Convention” . . . in the final version of the paragraph’). 165 Ibid., para. 2896. See also Françoise J. Hampson, ‘Law of War/Law of Armed Conflict/International Humanitarian Law’, in Michael J. Bowman and Dino Kritsiotis (eds.), Conceptual and Contextual Perspectives on the Modern Law of Treaties (Cambridge: Cambridge University Press, 2018), 538, 546 (‘an existing obligation to suppress . . . violations, which could but need not involve criminal proceedings’); Yves Sandoz, ‘The History of the Grave Breaches Regime’, Journal of International Criminal Justice 7 (2009): 657, 673–4 (‘[w]hile grave breaches had to be criminally punished, state parties are only under an obligation to ensure that non-grave breaches cease’); and Richard van Elst, ‘Implementing Universal Jurisdiction over Grave Breaches of the Geneva Conventions’, Leiden Journal of International Law 13 (2000): 815, 818 (‘[i]f war crimes do not amount to a grave breach, the Geneva Conventions do not impose an obligation to prosecute’). 166 2016 Commentary (n. 160), para. 2896. 167 Ibid. 168 Ibid., paras. 2897–8. Notably, para. 3 of Common Art. 49/50/129/146 does not provide for all ‘measures necessary for the suppression of all acts contrary to the provisions of the present Convention other

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Establishment and Change through Treaties 277 The significance of the Geneva Conventions for our analysis on universal jurisdiction is that its more detailed provision on grave breaches in fact requires High Contracting Parties to search for persons alleged to have committed or to have ordered grave breaches. A provision that, on its surface, is of much broader sweep than that on mandatory territoriality in the Genocide Convention,169 High Contracting Parties are also required to bring such persons regardless of their nationality before their own courts. This obligation—indeed, these obligations—of the second paragraph of the common provision are evidently not hemmed in by other jurisdictional considerations or qualifications: the nationality of the offender has been removed from the equation and there is no reason to suppose that the principles of territoriality or protection (security) or passive personality retain any defining role in the reckoning.170 Ultimately, this means that the Geneva Conventions were designed to have a totalizing impact on High Contracting Parties in respect of the legislation they would need to enact if such prosecutions were going to come to pass: the fact that these High Contracting Parties are obliged to design and enact legislation to canvass these eventualities must mean that universal jurisdiction171—and mandatory universality at that172—is being put to work in this very provision.173

than the grave breaches’—only ‘measures necessary’ for such suppression, presumably as elected by each High Contracting Party. Dissemination is in fact dealt with separately elsewhere in each Convention: Art. 47 Geneva Convention (I); Art. 48 Geneva Convention (II); Art. 127 Geneva Convention (III); Art. 144 Geneva Convention (IV) (n. 157). 169 In that it specifically provides for searches: see the text accompanying nn. 68–70. 170 That is ‘when no other internationally recognized prescriptive link’ occurs: Roger O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’, Journal of International Criminal Justice 7 (2009): 811, 811–12. At 814, O’Keefe also refers to this as ‘any prescriptive nexus’. 171 See van Elst (n. 165), 821 (‘[i]f States are to be able to prosecute all those responsible for grave breaches “regardless of their nationality,” universal jurisdiction is indispensable’). Note the 2016 Commentary (n. 160), para. 2847: ‘[i]t will be necessary to assess whether national legislation already contains the relevant prohibitions and the jurisdictional basis to extend jurisdiction to grave breaches committed by any perpetrators, regardless of their nationality’ (emphasis added). 172 See further Sandoz (n. 165), 674 (‘any state party to the Conventions is obliged to exercise universal jurisdiction over those responsible for these violations’ (i.e. grave breaches)), and O’Keefe (n. 170), 814 (‘the grave breaches provisions . . . mandate universal jurisdiction’). This conclusion is reached independent of the final aspect of the second paragraph—that a High Contracting Party ‘may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case’— which seems to indicate that this choice is subsequent to incorporation of the law of grave breaches in its ‘own legislation’ and, presumably, that ‘another High Contracting Party’ has taken identical steps: ‘universal jurisdiction must . . . be provided for in national legislation, to ensure that any State Party, and not only States party to an armed conflict, is able to exercise its jurisdiction over alleged offenders regardless of their nationality’. See 2016 Commentary (n. 160), para. 2864. Elsewhere, the Commentary observes that ‘[o]n paper the grave breaches regime amounts to a watertight mechanism’ (para. 2888); the reason for this ought to be evident: it is ‘to give all States parties the means to prevent impunity to deny safe haven to alleged perpetrators of grave breaches’ (para. 2864). 173 One can therefore afford to put it in stronger terms than Rosalyn Higgins does—that ‘major violations of the 1949 Geneva Conventions would be included in the small list of offences allowing universal jurisdiction’ (n. 22), 59 (emphasis added).

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278 Dino Kritsiotis Admittedly, as ‘ground-breaking’174 as this provision might have seemed at the time of its adoption,175 it exudes much more of an experimental feel when it is read from the perspective of the subsequent behaviour of the States Parties to the Geneva Conventions:176 pursuant to what those Conventions actually provide, national prosecutions of grave breaches really have been few and far between,177 and there is still—still, all these many decades later, since the Geneva Conventions entered into force in October 1950—a considerable way to go for all of the necessary national legislation to be enacted.178 At the same time, we should not forget that the Geneva Conventions

174 2016 Commentary (n. 160), para. 2888. See also Theodor Meron, ‘Is International Law Moving towards Criminalization?’, European Journal of International Law 9 (1998): 18, 23 (provisions represented ‘a clear break with the earlier tradition of humanitarian law instruments, which did not contain specific rules governing criminality’). 175 And since followed in other conventional arrangements: see e.g. Art. 8(1) of the 1979 International Convention Against the Taking of Hostages, 1316 UNTS 205: ‘[t]he State Party in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State’ (emphasis added). Art. V of the 1973 International Convention on the Suppression and Punishment of the Crimes of Apartheid, 1015 UNTS 243, provides that ‘[p]ersons charged with the acts enumerated in article II of the present Convention may be tried by a competent tribunal of any State Party to the Convention which may acquire jurisdiction over the person of the accused or by an international penal tribunal having jurisdiction with respect to those States Parties which shall have accepted its jurisdiction’. The ‘assumption of domestic jurisdiction over the perpetrators of apartheid appears to be permissive, not obligatory, even when a party fails to extradite perpetrators’ according to Randall (n. 163), 819. However, this provision should be set against Art. IV(a) of the Convention, according to which States Parties undertake ‘to adopt legislative, judicial and administrative measures to prosecute, bring to trial and punish in accordance with their jurisdiction persons responsible for, or accused of, the acts defined in article II of the present Convention, whether or not such persons reside in the territory of the State in which the acts are committed or are nationals of that State or of some other State or are stateless persons’ (emphasis added). The obligation concerning legislative measures—amongst other things—is separate to the obligation ‘to adopt any legislative or other measures necessary to suppress as well as to prevent any encouragement of the crime of apartheid and similar segregationist politics or their manifestations and to punish persons guilty of that crime’ (Art. IV(a)). See further John Dugard and John Reynolds, ‘Apartheid, International Law, and the Occupied Palestinian Territory’, European Journal of International Law 24 (2013): 867, 882. 176 Geoffrey Best has remarked rather baldly that ‘[t]his noble innovation has achieved nothing’: War and Law Since 1945 (Oxford: Clarendon Press, 1994), 396; Theodor Meron is of the view that ‘the record of national prosecutions of violators of such international norms as the grave breaches of the Geneva Conventions is disappointing, even when the obligation to prosecute or extradite violators is unequivocal’: ‘International Criminalization of Internal Atrocities’, American Journal of International Law 89 (1995): 554, 555. See also Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1989), 61. On the ‘unequivocal obligation’ to prosecute contained in the Geneva Conventions, see van Elst (n. 165), 819. This impression has surely not been brought about through the non-occurrence of grave breaches since the time of the Geneva Conventions: ibid., 815–16. 177 The 2016 Commentary (n. 160), para. 2888, reports a Danish High Court case in 1994 as ‘the first instance of national prosecution of perpetrators for grave breaches of the Geneva Conventions on the basis of universal jurisdiction’. See also Brigitte Stern on In Re Javor (French Cour de cassation) in American Journal of International Law 93 (1999): 525, 527. 178 See van Elst (n. 165), 825.

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Establishment and Change through Treaties 279 endorse the principle of aut dedire aut punicare for grave beaches,179 where ‘[n]o territorial or nationality link is envisaged’.180 Prompted by an observation made in the Commentary to Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field on the nature of the obligation to search in the Geneva Conventions,181 it has however been questioned whether the provision regarding grave breaches in the Geneva Conventions stands as a ‘true example’ of the principle of universality: ‘[i]s it a true example of universality, if the obligation to search is restricted to the[ir] own territory? Does the obligation to search imply permission to prosecute in absentia, if the search had no result?’182 In their joint separate opinion in Case Concerning the Arrest Warrant of 11 April 2000, Judges Higgins, Kooijmans, and Buergenthal stoked speculation on this point by referring to ‘whether’ this obligation of the Geneva Conventions is to be ‘described as the duty to establish universal jurisdiction or, more accurately, the jurisdiction to establish a territorial jurisdiction over persons for e xtraterritorial events’.183 At a later point in their opinion, this ambivalence was to reappear when the judges wrote of ‘[t]he underlying idea of universal jurisdiction properly so-called’ as in ‘the case of piracy, and possibly in the Geneva Conventions of 1949’.184 * * * 179 As occurs in Common Art. 49/50/129/146: Schabas (n. 67), 475, and Meron (n. 176), 61. See further Cedric Ryngaert, Jurisdiction in International Law, 2nd edn (Oxford: Oxford University Press, 2015), 124 (‘[t]he operation of the aut dedere requirement is indeed limited to States Parties, which pool their sovereignty and explicitly authorize each other to exercise jurisdiction over crimes committed by their nationals on their territory’). 180 Case Concerning the Arrest Warrant of 11 April 2000 (n. 144), 72 (para. 31). Consider, in contrast, Art. 36(2)(a)(iv) of the 1961 Single Convention on Narcotics and Drugs, 520 UNTS 151 (‘[s]erious offences heretofore referred to committed either by nationals or by foreigners shall be prosecuted by the Party in which territory the offence was committed, or by the Party in whose territory the offender is found if extradition is not acceptable in conformity with the law of the Party to which application is made, and if such offender has not already been prosecuted and judgment given’). 181 That: The obligation imposed on the Contracting Parties to search for persons accused of grave breaches of the Convention implies activity on their part. As soon as one of them is aware that a person on its territory has committed such an offence, it is its duty to see that such person is arrested and prosecuted without delay. It is not, therefore, merely at the instance of a State that the necessary police searches should be undertaken: they should be undertaken automatically, and the proceedings before the court should, moreover, be uniform in character, whatever the nationality of the accused. See 1952 Commentary (n. 158), 365–6 (emphasis added). 182 Case Concerning the Arrest Warrant of 11 April 2000 (n. 144), 72 (para. 31). 183 Ibid., 75 (para. 42). 184 Ibid., 78 (para. 51) (emphasis added). This had been preceded by the statement at 76 (para. 46), that ‘[t]here are . . . certain indications that a universal criminal jurisdiction for certain international crimes is clearly not regarded as unlawful. The duty to prosecute under those treaties which contain the aut dedere aut prosequi provisions opens the door to a jurisdiction based on the heinous nature of the crime rather than on links of territoriality or nationality (whether as perpetrator or victim). The 1949 Geneva Conventions lend support to this possibility, and are widely regarded as today reflecting customary international law.’

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280 Dino Kritsiotis Another contested example of universal jurisdiction in practice is the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft.185 Article 7 of that Convention provides that ‘[t]he Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution’.186 This provision is familiar to us because of its incorporation of the principle of aut dedire aut punicare, but at one and the same time, it affixes the obligation to the Contracting State ‘in the territory of which the alleged offender is found’. The formulation is unusual in view of the experience of the Genocide Convention where ‘territory’ was summoned and made relevant in respect of the venue of the commission of the crime rather than the locus of the offender (‘the territory [of the Contracting State] of which the alleged offender is found’). So which principle of prescriptive jurisdiction may be said to be in issue here? Could it be the principle of territoriality? Or could it perhaps be the principle of universality? Rosalyn Higgins has written that ‘it is perhaps understandable that [this Convention] is spoken of as universal jurisdiction’: Article 7 provides for prosecutorial action by ‘all parties’ to the Convention and this now stands at some 188 parties or so.187 However, she then goes on to contend that ‘it is still not really universal jurisdiction stricto sensu, because in any given case only a small number of contracting states would be able to exercise jurisdiction on the basis of Articles 2, 4, and 7’ of that Convention: ‘[a]ll that is “universal” ’, she maintains, ‘is the requirement that all states parties do whatever is necessary to be able to exercise jurisdiction should the relatively limited bases of jurisdiction arise in the circumstances’.188 We can begin to appreciate from this analysis how ‘universality’ can be put to different uses, how it can be made to serve different functions or even impart different contexts or frames of reference. Part of the difficulty, 185 860 UNTS 105. Part of a ‘triad of efforts’ to secure air safety and to safeguard civil aviation: C. S. Thomas and M. J. Kirby, ‘The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation’, International and Comparative Law Quarterly 22 (1973): 163, 163. See however at 170. The other two conventions thus concluded were the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (n. 23) and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 974 UNTS 177. 186 860 UNTS 105. See also verbatim Art. 7 of the Montreal Convention (n. 185). 187 Standing at over 140 at the time Higgins was writing (n. 22), 63. 188 Ibid., 64. Note, further, the following assessment from Gillian M. E. White, ‘The Hague Convention for the Suppression of Unlawful Seizure of Aircraft’, Review of the International Commission of Jurists 6 (1971): 38, 42: Article 7 was the subject of a considerable controversy at the Diplomatic Conference. A number of States, including both the United States and the Soviet Union, argued that States should be under an obligation in every case to extradite or prosecute the hijacker. However such a provision would have been unacceptable to many other States who considered that there be exceptional cases where, perhaps for lack of evidence or for humanitarian reasons, the circumstances would not justify bringing a prosecution. Those States considered that, although cases where proceedings were not brought would be rare, they could not accept a fetter on the discretion enjoyed by their prosecution authorities to decide whether or not to prosecute in the light of all the facts of a case.

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Establishment and Change through Treaties 281 here, is that the obligation impacts ‘only a small number of contracting states’ as opposed to the larger number of states who are not Contracting States (and, therefore, not impacted by this obligation qua convention).189 This is quite distinct from the ‘limited bases of jurisdiction’ found in the Hague Convention itself,190 but the presence of jurisdictional claims in the treaty form contrasts with the enunciation of these principles as a matter of customary international law (where what proves good for one state cannot be denied to all).191 Still, our chief focus here is on how ‘universality’ has come to define one such ‘basis’ for jurisdiction,192 where, imperatively, it denotes the ‘nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction’.193 To make any proper assessment of the true provenance of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft on the matter of jurisdiction, it is evidently necessary to have a more fluent command of provisions other than Article 7 of the Convention, especially Article 2 (‘[e]ach Contracting State undertakes to make the offence punishable by severe penalties’)194 and Article 4 (which involves recourse to both the principles of territoriality and nationality).195 It is further to these provisions that Article 7 then turns its mind to the eventuality of ‘the territory of which the alleged 189 Hence the regularity of focus on the number of Contracting States: Higgins (n. 22), 63–4. 190 Also emphasized by Higgins (n. 22), 64. 191 See further Klabbers (n. 33), 99. 192 Higgins (n. 22), 64. 193 Principle 1(1) of the Princeton Principles on Universal Jurisdiction (n. 31). Principle 1(2) then goes on to specify that universal jurisdiction ‘may be exercised by a competent and ordinary judicial body of any state in order to try a person duly accused of committing serious crimes under international law’. See also Higgins (n. 22), 64 (‘[u]niversal jurisdiction, properly called, allows any state to assert jurisdiction over an offence’). Note in this respect the observation of the International Law Commission’s Special Rapporteur Zdzislaw Galicki, who has written that treaty developments since the Hague Convention for the Suppression of Unlawful Seizure of Aircraft regarding the principle of aut dedere aut judicare have created ‘a principle of universality of suppression’—but that ‘[t]he principle of universality of suppression should not be identified, however, with the principle of universality of jurisdiction . . . The universality of suppression in this context means that, as a result of the obligation to extradite or prosecute between States concerned, there is no place where an offender could avoid criminal responsibility and could find so-called “safe haven”.’ See UN Doc. A/CN.4/571, 263 (7 June 2006). 194 With the offence defined in Art. 1. 195 In full, Art. 4 provides: 1. Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over the offence and any other act of violence against passengers or crew committed by the alleged offender in connection with the offence, in the following cases: a. when the offence is committed on board an aircraft registered in that State; b. when the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board; c. when the offence is committed on board an aircraft leased without crew to a lessee who has his principal place of business or, if the lessee has no such place of business, his permanent residence, in that State. 2. Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law.

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282 Dino Kritsiotis offender is found’ and while this formulation may seem to have the hint of the principle of territoriality about it, the real purpose of the provision is to confirm the principle (or obligation) of aut dedere aut judicare on Contracting States for alleged offenders when so found, effectively taking forward what had been said earlier in the Convention (Article 4(2))—a provision that intimates that this arrangement is additional (‘likewise’) to the bases of jurisdiction specified in Article 4(1). In these circumstances, the Convention goes on to provide, the submission of the case to the competent authorities for the purpose of prosecution must occur (and must occur ‘without exception whatsoever’) if no extradition is to take place in accordance with the terms of Article 8—and, crucially, ‘whether or not the offence was committed in its territory’.196 Without more, and without tethering itself to any of the other provisions of the Hague Convention,197 this does seem to move us beyond the earlier stipulations of the Convention,198 with

196 Consider, in particular, Art. 4(2) of the Convention (‘[e]ach Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offence in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article’). See further Sami Shubber, ‘Aircraft Hijacking under the Hague Convention 1970—A New Regime?’, International and Comparative Law Quarterly 22 (1973): 687, 712 (‘[t]he principle laid down in this provision may well be regarded as a new principle in the sphere of extra-territorial jurisdiction under international law, as there seems to be no connection between the offence of hijacking, the offender, the hijacked aircraft and the State entitled to exercise jurisdiction, apart from the presence of the perpetrator in the territory of that State’), and R. H. Mankiewicz, ‘The 1970 Hague Convention’, Journal of Air Law and Commerce 37 (1971): 195, 199, 203. And, in respect of the Montreal Convention (n. 185), provision is made in Art. 5(2) that ‘[e]ach Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offences mentioned in [the Convention] in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any States mentioned in [this] Article’. It has been said of this provision that it ‘adopts the version of universal jurisdiction contained in the Hague Convention, namely, that the State has jurisdiction if the offender is found in its territory, but is not extradited’: Thomas and Kirby (n. 185), 169. 197 As is done e.g. in the comparator (and later) provision of Art. 10(1) of the 1988 Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1678 UNTS 221—which provides in part that ‘[t]he State Party in the territory of which the offender or the alleged offender is found shall, in cases to which Article 6 applies, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State’ (emphasis added). Art. 10 has been described as ‘the key provision of the Convention’: Glen Plant, ‘The Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation’, International and Comparative Law Quarterly 39 (1990): 27, 49. It will be noticed that crossreference is made to Art. 6 of the Convention, which provides that ‘[e]ach State Party shall take such measures as may be necessary to establish its jurisdiction . . . when the [Convention] offence is committed: (a) against or on board a ship flying the flag of the State at the time the offence is committed; or (b) in the territory of that State, including its territorial sea; or (c) by a national of that State’ as well as that ‘[a] State Party may also establish its jurisdiction over any such offence when: (a) it is committed by a stateless person whose habitual residence is in that State; or (b) during its commission a national of that State is seized, threatened, injured or killed, or (c) it is committed in an attempt to compel that State to do or abstain from doing any act’. 198 As framed in Article 4 (n. 195). Consider M. Cherif Bassiouni, ‘International Crimes: The Ratione Materiae of International Criminal Law’, in M. Cherif Bassiouni (ed.), International Criminal Law, II: Multilateral and Bilateral Enforcement Mechanisms, 3rd edn (Leiden: Martinus Nijhoff Publishers, 2008),

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Establishment and Change through Treaties 283 Contracting States bound to realize their jurisdictional competence—and a competence which very much coheres with the principle of universality—to that end.199 * * * Finally, before we conclude this section, it is appropriate to share some thoughts on the position in customary international law in respect of the jurisdictional arrangements for war crimes200—at least as contained in the Study of the International Committee of the Red Cross (ICRC), Customary International Humanitarian Law, which was published in March 2005. According to Rule 157 of that Study, ‘States have the right to vest universal jurisdiction in their national courts over war crimes’,201 where ‘[s]erious violations of international humanitarian law’ are said to ‘constitute war crimes’.202 For the purposes of this rule, then, ‘war crimes’ are considered in their generic or holistic sense, so as to include grave breaches of the Geneva Conventions.203 No different denominations for war crimes are proclaimed as found in the Geneva Conventions or in the First Additional Protocol,204 and it is on this basis that the Study articulates its rule of 129, 181 (concluding that Art. 7 ‘implicitly allow[s] for universal jurisdiction if national jurisdiction provides for it’). 199 See Ryngaert (n. 179), 124. 200 A point raised by Judges Higgins, Kooijmans, and Buergenthal in their joint separate opinion in Case Concerning the Arrest Warrant of 11 April 2000 (n. 144), 75 (para. 42)—‘[w]hether this obligation . . . is an obligation only of treaty law, inter partes, or whether it is now, at least as regards the offences articulated in the treaties, an obligation of customary international law’—but left unexplored because it ‘was pleaded by the Parties in this case but not addressed in any great detail’ (emphasis in original). See also Art. 16(2) (a) of the 1999 Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property, 2253 UNTS 172 (‘this Protocol does not preclude the incurring of individual criminal responsibility or the exercise of jurisdiction under national and international law that may be applicable, or affects the exercise of jurisdiction under customary international law’). 201 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, I: Rules (Cambridge: Cambridge University Press, 2005), 604. 202 Rule 156 of the Study. The denotation of ‘serious’ violations for the definition of war crimes contrasts with practice ‘which defines war crimes as any violation of the laws or customs of war’. Consider on this matter H. Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’, British Yearbook of International Law 21 (1944): 58, 77. However, as the Study indicates, ‘most of this practice illustrates such violations in the form of lists of war crimes, typically referring to acts such as theft, wanton destruction, murder and ill-treatment, which indicates that these States in fact limit war crimes to the more series violations of international humanitarian law’: Henckaerts and Doswald-Beck (n. 201), 569. See further the (undated) Explanatory Note of the ICRC, ‘What Are “Serious Violations of International Humanitarian Law”?’ (https://www.icrc.org/eng/assets/files/2012/att-what-are-serious-violations-of-ihl-icrc.pdf); Paola Gaeta, ‘War Crimes and Other International “Core” Crimes’, in Andrew Clapham and Paola Gaeta (eds.), International Law in Armed Conflict (Oxford: Oxford University Press, 2014), 737, 747–50; and Oona A. Hathaway, Paul K. Strauch, Beatrice A. Walton, and Zoe A. Y. Weinberg, ‘What Is a War Crime?’, Yale Journal of International Law 44 (2019), 53. On the ‘amorphous’ nature of this term—‘used in different contexts to mean different things’—consider John B. Bellinger, III and William J. Haynes, II, ‘A US Government Response to the International Committee of the Red Cross Study Customary International Humanitarian Law’, International Review of the Red Cross 89 (2007): 443, 466, and also at 467. 203 Henckaerts and Doswald-Beck (n. 201), 574. 204 That said, the Study wastes no time in pointing out that its formulation ‘in no way diminishes the obligation of States party to the Geneva Conventions and States party to Additional Protocol I to provide

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284 Dino Kritsiotis permissive universality: namely, a ‘right’ of states to exercise universal jurisdiction—to ‘vest universal jurisdiction in their national courts’,205 as the Study puts it—that emanates from national legislation, prosecutorial practice and military manuals.206 Further to this, it is said in the Study that: [p]ractice is not uniform with respect to whether the principle of universal jurisdiction requires a particular link to the prosecuting State. The requirement that some connection exist between the accused and the prosecuting State, in particular that the accused be present in the territory or has fallen into the hands of the prosecuting State, is reflected in the military manuals, legislation and case-law of many States. There is also legislation and case-law, however, that does not require such a link. The Geneva Conventions do not require such a link either.207

It might of course be wondered what the relevance or worth of a customary rule on jurisdiction for war crimes would be—given that the Geneva Conventions ‘have been universally ratified’ and have been hailed as ‘the world’s first universal treaties’.208 What need or occasion would there thus be for recourse to any customary rule since the Geneva Conventions attained this (remarkable) status with the accession of Nauru in June 2006 and Montenegro in August 2006?209 In truth, it is very much the case that any ‘universality’ of a treaty is ‘a contingent matter’,210 a ‘temporary condition’,211 where ‘[t]hese shifts between universality and non-universality [of treaties] cannot have affected the customary law status of the provisions of the four Conventions, if these were already customary international law’.212 That customary law status must surely relate to war crimes in their generic sense, but the difficulty is that the Study of the ICRC does not necessarily pinpoint the chronologies of each of its various customs—so we are not alerted as to when this ‘already’ would be. The real virtue of Rule 157, then, is that it is

for universal jurisdiction in their national legislation over those war crimes known as “grave breaches” ’: ibid., 606. 205 Ibid. 206 Ibid., 604–5 (noting, at 605, that ‘[i]t is significant that the States of nationality of the accused did not object to the exercise of universal jurisdiction’). The Study charts this evidence as an amalgam, but criticism has been levelled at its individual components: Bellinger and Haynes (n. 202), 466 (‘the Study cites very little evidence of actual prosecutions of war crimes not connected to the forum State (as opposed to the mere adoption of legislation by the States)’). 207 Henckaerts and Doswald-Beck (n. 201), 605–6. 208 James Crawford, ‘Change, Order, Change: The Course of International Law’, Hague Recueil 365 (2013): 9, 91. See further Meron (n. 176), 2, 8. 209 As the 193rd and 194th States Parties respectively: see ICRC, ‘A Milestone for International Humanitarian Law’ (22 September 2006): https://www.icrc.org/eng/resources/documents/statement/ geneva-conventions-statement-220906.htm (making the four Geneva Conventions ‘the first in modern history to achieve universal acceptance’). 210 Crawford (n. 208), 96. 211 Ibid. After all, the Geneva Conventions do contain a common provision—Common Art. 63/62/142/158—on denunciation. 212 Crawford (n. 208), 96.

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Establishment and Change through Treaties 285 framed in terms of jurisdiction and not suppression,213 making explicit what might be thought to be implicit from the Geneva Conventions themselves.214 Notable, too, is the fact that the rule is cast in terms of a right of states and not an obligation for action,215 and we can assume that the practice before the ICRC only took Rule 157 so far and no further.216 We have also been made aware of the complexities that have arisen in according the status of universal jurisdiction to particular acts within the practice of states in view of any requirement for some ‘link’217 or ‘nexus’218 with the prosecuting state—and this has prompted intimations about so-called ‘true’219 or ‘pure’220 universal jurisdiction. The implication is plain for all to see: it is that we must be wary of ubiquitous proclamations of or citations to universal jurisdiction for we must be able to spot imitators and imposters at a distance. Presumably this is to be done by reference to the doctrinal coordinates that govern the essence of universal jurisdiction,221 and we have seen that aspersions have even been cast on what the Geneva Conventions provide for in terms of grave breaches: their obligation to search for persons alleged to have committed or to have ordered to have committed these breaches apparently rests on the premise that such persons are already present on the territory of the (prosecuting) state.222 It is this factor that has caused oscillation from the principle of universality to the principle of

213 The focus, of course, of the third paragraph of Common Art. 49/50/129/146. 214 Consider, however, R. R. Baxter, ‘The Municipal and International Law Basis of Jurisdiction over War Crimes’, British Yearbook of International Law 28 (1951): 382, 388–9 (‘whether or not to punish war crimes is not left to the unfettered discretion of the state. Both the Geneva Wounded and Sick Convention of 1929 and the Geneva Conventions of 1949 contain positive undertakings to enact penal legislation necessary to punish violations of those treaties, and it would appear that a like requirement is imposed by the customary laws of war.’). According to Randall (n. 163), 785, the Geneva Conventions ‘give very little guidance concerning violations of nongrave offenses, requiring only that the parties “take measures necessary” for their suppression’. 215 Quaere, though, where the level of practice rests in terms of jurisdictional action on grave breaches: it has been said that ‘the Study conflates actions taken pursuant to treaty obligations with those taken out of a sense of customary legal obligation under customary international law’: Bellinger and Haynes (n. 202), 466–7. 216 So, in highlighting evidence for Rule 157, the Study observes that ‘several persons have been tried by national courts for war crimes committed in non-international armed conflicts on the basis of universal jurisdiction’—and that ‘the States of nationality of the accused did not object to the exercise of [this] jurisdiction in these cases’: (n. 201), 604–5. Had an obligation on states to vest universal jurisdiction in their national courts over (all) war crimes been in contention, one would have thought that objections would almost certainly have been forthcoming from states for the failure to prosecute for war crimes in identical circumstances. 217 nn. 180 and 207. 218 n. 170. 219 n. 182. 220 n. 100 and also Bellinger and Haynes (n. 202), 468. See also Stephen A. Oxman, ‘Comment: The Quest for Clarity’, in Stephen Macedo (ed.), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law (Philadelphia, PA: University of Pennsylvania Press, 2004), 64, 65. 221 Higgins (n. 129). 222 n. 181. Note, too, that the very next obligation of Common Art. 49/50/129/146 is to ‘bring such persons, regardless of their nationality, before its own courts’ (emphasis added)—i.e. it relates to the very persons coming with the compass of the obligation to search.

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286 Dino Kritsiotis territoriality,223 though impressions of the radical design of the Geneva Conventions by recourse to the principle of universality still do run deep.224 In any event, it does need to be asked whether the existence of some additional component—such as the territorial presence of those suspected of grave breaches of the Geneva Conventions—is sufficient cause to disrupt the recourse to the appellation of universal jurisdiction in this context: that component has somehow come to cast an ambiguous shadow over the conditions for the activation of jurisdictional arrangements that would already need to have been adopted in accordance with the Geneva Conventions.225 And whatever obligation is provided for in respect of ‘search’ must arise subsequent to those jurisdictional arrangements—where grave breaches are no more defined by the territory where they were committed than the nationality of those who committed them.226

IV. Jurisdiction on Multiple Grounds Thus far, our examination of conventional arrangements on jurisdiction has concentrated on the development of specific rules in respect of specific (international) crimes, but, in the treaty form, we have also seen how the principles of (prescriptive) jurisdiction have moved from the permissive to the mandatory model.227 As this change has occurred, and as we shall see, conventional design has also empanelled multiple 223 n. 183. See further Antonio Cassese, ‘Is the Bell Tolling for Universality? A Plea for A Sensible Notion of Universal Jurisdiction’, Journal of International Criminal Justice 1 (2003): 589, 594: these treaties do not provide for universal jurisdiction proper, for only the contracting states are entitled to exercise extraterritorial jurisdiction over offenders on their territory. In addition, it may be contended that such jurisdiction does not extend to offences committed by nationals of states not parties, unless the crime (1) is indisputably prohibited by customary international law . . . or (2) the national of the non-contracting state engages in prohibited conduct in the territory of a state party, or against nationals of that state. 224 As one of the ‘clear cases’ of universal jurisdiction: Crawford (n. 32), 468. 225 See further O’Keefe (n. 134), 747 (‘[t]he jurisdiction mandated by the relevant treaty provision is, in fact, universal jurisdiction—that is, prescriptive jurisdiction in the absence of any other recognized jurisdictional nexus’). Indeed, one may fully appreciate why the obligation to search may have been defined by the territorial presence of the suspect; it brings us one step closer to ‘custody’ of the person: note that Principle 8 of the Princeton Principles on Universal Jurisdiction (n. 31) considers the assertion of jurisdiction as a separate proposition to the ‘custody of the person’ in question. 226 As is made clear by Common Art. 49/50/129/146 (‘regardless of their nationality’). It is worth pointing out that, in contrast to the permissive universality of Rule 157 of the ICRC Study, Rule 158 provides that ‘States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the subjects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.’ See Henckaerts and Doswald-Beck (n. 201), 607. It would appear that the ‘other war crimes over which they have jurisdiction’ is a reference to ‘universal jurisdiction, which is obligatory for grave breaches’: ibid. The fact that the prospect of prosecution is qualified (‘if appropriate’) and that the prospect of investigation is not should not matter one iota because both aspects involve the ‘exercise [of] criminal jurisdiction’ by states: ibid. 227 See further Mills (n. 42), 209, 211, 235 (‘the approach to jurisdiction needs to be reconceived not merely as a ceiling, but also as a floor’).

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Establishment and Change through Treaties 287 rinciples for jurisdictional action by states. What is interesting to observe from this p phenomenon, though, is how treaties have engaged these principles: that the ‘obligation’ has come to be the organizing paradigm or modality of choice, for the enunciation of these principles is not in question but, from time to time, there has been a tendency to attenuate or modify that obligation in some way. We shall want to probe this factor further in this section of the chapter, but in order to do so, let us commence with the evolution and appeal of this multiplicity—a phenomenon, one hastens to add, already known to customary international law228—before concluding the section by returning to the relation between conventional and customary iterations of jurisdiction in respect of the same crime.229 A good early example of the invocation of multiple principles of jurisdiction arrived in the form of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, which provides: Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over the offence and any other act of violence against passengers or crew committed by the alleged offender in connection with the offence, in the following cases: (a) when the offence is committed on board an aircraft registered in that State; (b) when the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board; (c) when the offence is committed on board an aircraft leased without crew to a lessee who has his principal place of business or, if the lessee has no such place of business, his permanent residence, in that State.230

The Convention thus provides for mandatory nationality and/or mandatory territoriality,231 where each and every Contracting State has no option but to establish jurisdiction to cover the circumstances identified. As such, it follows the pattern of the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft,232 but the Tokyo Convention then went on further so as to provide: 228 See Diane F. Orentlicher, ‘Universal Jurisdiction: A Pragmatic Strategy in Pursuit of a Moralist’s Vision’, in Leila Nadya Sadat and Michael P. Scharf (eds.), The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (Leiden: Martinus Nijhoff Publishers, 2008), 127, 137. 229 See further Schachter (n. 26). 230 Art. 4(1) (n. 185). 231 A qualification made on account of the different interpretations awarded to ‘territory’: see Rain Liivoja, ‘Service Jurisdiction under International Law’, Melbourne Journal of International Law 11 (2010): 309, 313, and Harris and Sivakumaran (n. 25), 234. See further Damrosch et al. (n. 36), 791. 232 n. 23. After having provided that ‘[t]he State of registration of the aircraft is competent to exercise jurisdiction over offences and acts committed on board’ (Art. 3(1)), the Tokyo Convention stipulates that ‘[e]ach Contracting State shall take such measures as may be necessary to establish its jurisdiction as the State of registration over offences committed on board aircraft registered in such State’ (Art. 3(2))— mandatory nationality and/or mandatory territoriality in action. See further Art. 16(1) of the Tokyo Convention: ‘[o]ffences committed on aircraft registered in a Contracting State shall be treated, for the purpose of extradition, as if they had been committed not only in the place in which they have occurred but also in the territory of the State of registration of the aircraft’. More generally, consider Art. 17 of the

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288 Dino Kritsiotis A Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in the following cases: (a) the offence has effect on the territory of such State; (b) the offence has been committed by or against a national or permanent resident of such State; (c) the offence is against the security of such State; (d) the offence consists of a breach of any rules or regulations relating to the flight or manoeuvre of aircraft in force in such State; (e) the exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.233

It is interesting that the term of the ‘exercise’234 of criminal jurisdiction is made use of here—that is, in the context of the possible interference with an aircraft that is still in flight (note the counterposition of ‘may not interfere’). What, though, does the exercise of criminal jurisdiction mean in this context? An exercise of jurisdiction to be sure, but an exercise to what end? And what kind of jurisdiction is or could be implicated? An exercise of prescriptive or prerogative jurisdiction?235 At what point, though, does prescriptive jurisdiction cease and prerogative jurisdiction commence? And how do

1944 Chicago Convention on International Civil Aviation, 15 UNTS 295 (nationality of aircraft) and Art. 91 UNCLOS (n. 135) (nationality of ships). 233 Art. 4 (n. 23). 234 The point of emphasis, too, of Robert P. Boyle and Roy Pulsifer, ‘The Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft’, Journal of Air Law and Commerce 30 (1964): 305, 336. It may be helpful to note that part of the inspiration for this provision is Art. 19(1) of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone, 516 UNTS 205: The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: (a) If the consequences of the crime extend to the coastal State; or (b) If the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; or (c) If the assistance of the local authorities has been requested by the captain of the ship or by the consul of the country whose flag the ship flies; or (d) If it is necessary for the suppression of illicit traffic in narcotic or drugs. 235 In reflecting on the customary international law position on this matter, Sami Shubber observes that ‘[a]ccording to the principle [of territoriality], every State is competent to arrest, try, and punish any person committing an offence in the territory of such a State’. See Sami Shubber, Jurisdiction over Crimes on Board Aircraft (The Hague: Martinus Nijhoff, 1973), 76. Yet, in considering the meaning of Art. 4 of the Tokyo Convention, he concludes (at 86) that ‘the intention of the drafters seems to limit the application of the rule to the territorial State alone’—but admits a lack of clarity of what ‘is the nature of the undertaking of the territorial State’ in this context. Consider also Juan J. Gutierrez Lopez, ‘Should the Tokyo Convention of 1963 Be Ratified?’, Journal of Air Law and Commerce 31 (1965): 1, 10–11 (‘once the law of the flag is established in article 3, all the exceptions of article 4 defeat the Convention’s raison d’être and give rise to foreseeable new conflicts with respect to the right of innocent passage’).

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Establishment and Change through Treaties 289 these propositions relate to the idea of the establishment of jurisdiction as mentioned earlier in the same Convention?236 These questions begin to hint at how problematic existing frameworks might be in addressing or analysing the jurisdictional action of states:237 they enjoin the shortcomings we have found in respect of the mere principles of jurisdiction that have occupied much of the attention of this chapter.238 Our pressing concern at this point in time, however, remains the dynamics of multiple principles for jurisdiction that have been adopted within certain treaties: this has become more expansive as time has gone on than that set forth in the Tokyo Convention. We can select from a host of examples— such as the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation239 and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances240—for this endeavour, but the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or 236 n. 232. 237 Note in this respect Mills’s reference to ‘jurisdiction to prescribe and to adjudicate (excluding the enforcement aspects of jurisdiction)’: (n. 42), 195. 238 Note further the observation that ‘legislation is a fallible guide to claims to enforcement jurisdiction’: Churchill and Lowe (n. 50), 12. 239 n. 185. See Art. 5: 1. Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over the offences in the following cases: (a) when the offence is committed in the territory of that State; (b) when the offence is committed against or on board an aircraft registered in that State; (c) when the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board; (d) when the offence is committed against or on board an aircraft leased without crew to a lessee who has his principal place of business or, if the lessee has no such place of business, his permanent residence, in that State. 2. Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offences mentioned in Article 1, paragraph 1(a), (b) and (c), and in Article 1, paragraph 2, in so far as that paragraph relates to those offences, in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with national law. Bear in mind that Art. 7 of the Montreal Convention does go on to provide that ‘[t]he Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State’. This has been regarded as a ‘core obligation’ of the conventional regime: John P. Grant, ‘Beyond the Montreal Convention’, Case Western Reserve Journal of International Law 36 (2004): 453, 457. 240 704 UNTS 219. See esp. Art. 4: 1. Each Party: (a) Shall take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when: (i) The offence is committed in its territory; (ii) The offence is committed on board a vessel flying its flag or an aircraft which is registered under its laws at the time the offence is committed;

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290 Dino Kritsiotis Punishment is calling out for particular attention on account of the significant interest and activity that it has generated.241 Article 5 of that Convention provides in full: 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over [Convention] offences . . . in the following cases: (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

From this provision, it will be appreciated that multiple jurisdictional obligations are imposed on States Parties in order, we can safely presume, ‘to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world’:242 to begin with, the Convention proceeds on the basis of

(b) May take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when: (i) The offence is committed by one of its nationals or by a person who has his habitual residence in its territory; (ii) The offence is committed on board a vessel concerning which that Party has been authorized to take appropriate action pursuant to article 17, provided that such jurisdiction shall be exercised only on the basis of agreements or arrangements referred to in paragraphs 4 and 9 of that article; (iii) The offence is one of those established in accordance with article 3, paragraph 1, subparagraph (c)(iv), and is committed outside its territory with a view to the commission, within its territory, of an offence established in accordance with article 3, paragraph 1. 2. Each Party: (a) Shall also take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when the alleged offender is present in its territory and it does not extradite him to another Party on the ground: (i) That the offence has been committed in its territory or on board a vessel flying its flag or an aircraft which was registered under its law at the time the offence was committed; or (ii) That the offence has been committed by one of its nationals; (b) May also take such measures as may be necessary to establish its jurisdiction over the offences it has established in accordance with article 3, paragraph 1, when the alleged offender is present in its territory and it does not extradite him to another Party. 3. This Convention does not exclude the exercise of any criminal jurisdiction established by a Party in accordance with its domestic law. 241 1465 UNTS 85. 242 From the final preambular recital to the Torture Convention: ibid.

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Establishment and Change through Treaties 291 mandatory territoriality and/or mandatory nationality (Article 5(1)(a))243 as well as mandatory nationality (Article 5(1)(b)). Then, in what would appear to be an invocation of mandatory passive personality, Article 5(1)(c) of the Convention provides for the establishment of jurisdiction ‘[w]hen the victim is a national of that State’—but an immediate qualification is then entered (‘if that State considers it appropriate’). This proviso would indicate that States Parties ultimately retain the discretion to decide whether jurisdiction should be established at all, the result of an apparent compromise between those states who believed that the omission of this jurisdictional ground would leave a gap in the conventional architecture—and those states who felt its inclusion would lead to conflicting claims of jurisdiction.244 We may therefore more appropriately speak of permissive passive personality in respect of Article 5(1)(c) of the Convention since, in truth, this aspect of the provision ‘does not contain any obligation for States parties to establish criminal jurisdiction on the basis of the passive personality principle, but merely an authorization under international law to provide for such jurisdiction if they consider it appropriate’.245 This does not mark the end of the road of the Torture Convention’s arrangements on jurisdiction: imperatively, there is also Article 5(2) to consider.246 With the use of the word ‘likewise’, it is clear that an additional obligation was intended for States Parties beyond the jurisdictional grounds itemized in Article 5(1) of the Convention— specifically that States Parties ‘take such measures as may be necessary to establish its jurisdiction over such offences [of the Convention] in cases where the alleged offender is present in any territory under its jurisdiction’. However, Article 5(2) articulates this obligation on a contingent basis, for it immediately then goes on to conscript the principle of aut dedere aut judicare (‘and it does not extradite [the alleged offender]’)247 known to us from the Hague Convention for the Suppression of Unlawful Seizure of 243 See further n. 231. 244 Manfred Nowak and Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary (Oxford: Oxford University Press, 2008), 311–12. 245 Ibid., 312. Also at 254–5 (‘[o]nly in respect of the passive nationality principle in Article 5(1)(c) do States enjoy the discretionary power to decide whether or not to apply it’). As Judges Higgins, Kooijmans, and Buergenthal remarked in their separate opinion in Case Concerning the Arrest Warrant of 11 April 2000 (n. 144), 76–7 (para. 47): ‘[p]assive personality jurisdiction, for so long regarded as controversial, is now reflected not only in the legislation of various countries (the United States, Ch. 113A, 1986 Omnibus Diplomatic and Antiterrorism Act; France, Art. 689, Code of Criminal Procedure, 1975), and today meets with relatively little opposition, at least so far as a particular category of offences is concerned’. See also Crawford (n. 32), 469. 246 Amongst other things: see also Art. 5(3) (relevant internal law) and Art. 12 (the obligation for prompt and impartial investigation under Art. 12). 247 In accordance with Art. 8 of the Convention: 1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them. 2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another. State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

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292 Dino Kritsiotis Aircraft.248 Indeed, it is regarded as the first time that a human rights treaty ‘establishes the obligation of States parties to establish universal jurisdiction in all cases where an alleged torturer is present in any territory under their jurisdiction’.249 The fact that the obligation is appended to the territorial presence of the alleged offender does not diminish the fact that states must enact legislation pursuant to the principle of universality in order to cater for that very eventuality:250 the formulation constitutes a deliberate attempt to take matters further than the jurisdictional arrangements set forth in Article 5(1) of the Convention so as to facilitate the application of the principle of aut dedere aut judicare in circumstances where the alleged offender is present on the territory of a State Party.251 Through this intricate network of jurisdictional rules, and also of the intended relations between States Parties, the Torture Convention has thus committed itself to depriving torturers of ‘any place of refuge’,252 of denying them any prospect of jurisdictional solace or comfort. * * * 3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State. 4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1. See further J. Herman Burgers and Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1988), 133. 248 n. 196. 249 See Nowak and McArthur (n. 244), 254; Ryngaert (n. 179), 111; and Christopher Keith Hall, ‘The Duty of States to the Convention Against Torture to Provide Procedures Permitting Victims to Recover for Torture Committed Abroad’, European Journal of International Law 18 (2007): 921, 925 (‘[a]lthough this provision expressly requires action only when the alleged offender is present in territory under its jurisdiction and is silent with respect to whether it includes persons suspected of committing torture outside the forum state, the provision, by virtue of Article 7, necessarily requires each state party to provide for universal jurisdiction of such extraterritorial conduct whenever the forum state fails to extradite the suspect’). To recall, Art. 7 of the Torture Convention provides that ‘[t]he State Party in the territory under whose jurisdiction a person alleged to have committed any [Convention] offence is found shall in cases contemplated in [A]rticle 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution’. Note in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (2012) ICJ Rep. 422, 451 (para. 74), the International Court of Justice’s reference to ‘universal jurisdiction’ in the context of its examination of Art. 5(2) of the Convention: (‘the performance by the State of its obligation to establish the universal jurisdiction of its courts over the crime of torture is a necessary condition for enabling a preliminary enquiry (Article 6, paragraph 2), and for submitting the case to its competent authorities for the purposes of the prosecution (Article 7, paragraph 1)’. For a critical assessment of the Court’s approach: Matthew Garrod, ‘Unraveling the Confused Relationship Between Treaty Obligations to Extradite or Prosecute and “Universal Jurisdiction” in the Light of the Habré Case’, Harvard International Law Journal 59 (2018): 125, 130. 250 See the analysis accompanying nn. 225 and 226. 251 Note how mention of the extradition possibility is tied to ‘any of the States mentioned in paragraph 1 of . . . [A]rticle [5]’: Art. 5(2). 252 Nowak and McArthur (n. 244), 267.

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Establishment and Change through Treaties 293 As we end this section, something should be said on the position of jurisdiction for torture as a matter of customary international law. In R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet (No. III),253 the House of Lords anchored its analysis in the incorporation of the Torture Convention into the law of the United Kingdom by virtue of the 1988 Criminal Justice Act. The Act had provided that ‘[a] public official or person acting in an official capacity whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties’254 and it came into force on 29 September 1998—a date that had a seminal impact on the reasoning and decision of the House of Lords: The obligations placed on the United Kingdom by that [i.e. Torture] Convention (and on the other 110 or more signatory states who have adopted the Convention) were incorporated into the law of the United Kingdom by section 134 of the Criminal Justice Act 1988. That Act came into force on 29 September 1998. Section 134 created a new crime under United Kingdom law, the crime of torture. As required by the Torture Convention ‘all’ torture wherever committed worldwide was made criminal under United Kingdom law and triable in the United Kingdom. No one has suggested that before section 134 came into effect torture committed outside the United Kingdom was a crime under United Kingdom law. Nor is it suggested that section 134 was retrospective so as to make torture outside the United Kingdom before 29 September 1988 a United Kingdom crime.255

There are two observations to come forward from these developments: one is that the Criminal Justice Act incorporates the notion of ‘universality’ into the actual definition of the actus reus of the crime of torture;256 in making explicit reference to this element in its formulation, the domestic legislation can be usefully contrasted with the definition of torture in the Torture Convention (‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or 253 [2000] 1 AC 47. 254 s. 134(1) of the Act, c. 33 (emphases added). 255 R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet (No. III) (n. 253), 189 (per Lord Browne-Wilkinson). Equally emphasized at 209. See, also, Lord Hope (at 228 and 237–9) and Lord Hutton (at 261). 256 See however John Child and David Ormerod, Smith, Hogan, and Ormerod’s Essentials of Criminal Law, 2nd edn (Oxford: Oxford University Press, 2017), 259. It is worth bearing in mind, though, that ‘torture’ arises in multiple contexts within public international law: see Sandesh Sivakumaran, ‘Torture in International Human Rights and International Humanitarian Law: The Actor and the Ad Hoc Tribunals’, Leiden Journal of International Law 18 (2005): 541.

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294 Dino Kritsiotis acquiescence of a public official or other person acting in an official capacity’),257 which, on its surface,258 contains no reference to the locus of the crime. Hence, Lord BrowneWilkinson was of the view that the Criminal Justice Act stands at one with the definition of torture as contained in the Torture Convention, for his reference to ‘all’ torture ‘wherever committed worldwide’259 suggests that we have on our hands a choice exemplar of a universal crime, released from the bonds and assumptions of territoriality not by virtue of any of the principles of jurisdiction but by the way that the crime itself has been defined. Following on from this is the second factor: it is that, in exercising its prescriptive jurisdiction in accordance with the Torture Convention, the United Kingdom did not confine itself to the jurisdictional grounds that are itemized in Article 5(1) of that Convention—namely, mandatory territoriality, mandatory nationality, and permissive passive personality—as discussed earlier in this chapter.260 Perhaps this is to be explained by the universalization of the crime of torture rendered at the start of the Criminal Justice Act; its expansiveness, its comprehensiveness, its unmistakable scope of application meant that the United Kingdom was meeting its obligations under the Convention— and more besides.261 For, in so acting, the United Kingdom was also exercising its jurisdiction beyond the strict terms of Article 5(2) of the Convention (‘such measures as may necessary to establish its jurisdiction over such offences [of the Convention] in cases where the alleged offender is present in any territory under its jurisdiction’):262 it was not limiting itself to situations where the alleged torturer was found present within its territory.263 That subtle change may be a distinction without a difference, however, since the Criminal Justice Act represents an exercise of prescriptive rather than prerogative jurisdiction by the United Kingdom: it does not provide for how the alleged torturer is to be brought within territory of that state if they are not so located,264 and in reality this 257 Art. 1(1) of the Torture Convention (n. 241). See also Antonio Cassese et al., Cassese’s International Criminal Law, 3rd edn (Oxford University Press, 2013), 132–3. 258 With its stipulation of ‘any act’, it could be said that the Torture Convention’s definition of the torture purports to be comprehensive—and that the remainder of that definition in Art. 1(1) is worded in such a way that it can apply irrespective of the locus of the commission of the crime. 259 n. 255. 260 See text accompanying nn. 243–5. 261 Art. 1(2) of the Convention does provide that ‘[t]his article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application’. Consider that Lassa Oppenheim defined ‘international crimes’ as ‘crimes like piracy on the high seas or slave trade, which either every State can punish on seizure of the criminals, of whatever nationality they may be, or which every State has by the Law of Nations a duty to prevent’: International Law: A Treatise, I: Peace (London: Longmans, Green & Co., 1905), 201–2 (§151). 262 Emphasis added. 263 Contrast the approach in the 1994 Torture Convention Implementation Act, 18 USC §§2340 et seq. (2000), where the United States Congress established ‘jurisdiction over the [prohibited] activity’ if ‘(1) the alleged offender is a national of the United States; or (2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender’. This legislation has been taken to be ‘[a] notable . . . assertion of universal jurisdiction’: Damrosch et al. (n. 36), 806. 264 Consider, again by way of contrast, the amendment made to the 1987 Genocide Convention Implementation Act, 18 USC §§1091 et seq. (2000)—that ‘after the conduct required for the offense

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Establishment and Change through Treaties 295 legislation is only ever likely to finds its relevance if the alleged torturer is indeed present within the territory of the United Kingdom.265 Still, in his opinion in ex parte Pinochet (No. III), Lord Millett broke from the conventional stranglehold operating on his peers when he examined the possibility of ‘an independent source of jurisdiction from customary international law’,266 and did so in respect of the crime of torture.267 According to Lord Millett, ‘crimes prohibited by international law attract universal jurisdiction under customary international law’ if they meet two conditions: first, they would have to be contrary to a peremptory norm of general international law (‘so as to infringe a jus cogens’) and, second, they must be of a certain seriousness and scale ‘that they can justly be regarded as an attack on the international legal order’.268 Without too much more,269 Lord Millett then proceeded to say: In my opinion, the systematic use of torture on a large scale and as an instrument of state policy had joined piracy, war crimes and crimes against peace as an international occurs, the alleged offender is brought into, or found in, the United States, even if that conduct occurred outside the United States’. 265 As occurred with Colonel Kumar Lama, of the Royal Nepalese Army, and his trial at the Old Bailey in London in June and July 2016 for incidents involving torture occurring between April and May 2005 at Gorusinghe Army Barracks, Kapilvastu, Nepal: Devika Hovell, ‘The “Mistrial” of Kumar Lama: Problematizing Universal Jurisdiction’, EJIL:Talk!, 6 April 2017. See further Devika Hovell, ‘The Authority of Universal Jurisdiction’, European Journal of International Law 29 (2018): 427. 266 As he had found for the crime of genocide in Attorney General of Israel v Eichmann: see R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet (No. III) (n. 253), 274. Against this, see the assessment of Lord Browne-Wilkinson (at 200–1 and 204–5) and also Lord Phillips (at 290). O’Keefe forms the view that ex parte Pinochet (No. III) remains ‘inconclusive’ on the significance of custom: Roger O’Keefe, ‘Customary International Crimes in English Courts’, British Yearbook of International Law 72 (2002): 293, 301. 267 See further O’Keefe (n. 266), 298–9. 268 R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet (No. III) (n. 253), 275. Chile had questioned the automatic relationship between jus cogens and universal jurisdiction. Lord Browne-Wilkinson had himself admitted (at 198), though, that ‘[t]he jus cogens nature of the international crime of torture justifies states in taking jurisdiction over torture wherever committed’. And, later (at 205), referring to ‘the whole elaborate structure of universal jurisdiction over torture committed by officials’. 269 Lord Millett ibid., 276, citing from The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment: Many people assume that the Convention’s principal aim is to outlaw torture and other cruel, inhuman or degrading treatment or punishment. This assumption is not correct in so far as it would imply that the prohibition of these practices is established under international law by the Convention only and that this prohibition will be binding as a rule of international law only for those states which have become parties to the Convention. On the contrary, the Convention is based upon the recognition that the above-mentioned practices are already outlawed under international law. The principal aim of the Convention is to strengthen the existing prohibition of such practices by a number of supportive measures. See Burgers and Danelius (n. 247), 1.

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296 Dino Kritsiotis crime of universal jurisdiction well before 1984. I consider that it had done so by 1973. For my own part, therefore, I would hold that the courts of this country already possessed extra-territorial jurisdiction in respect of torture and conspiracy to torture on the scale of the charges in the present case and did not require the authority of statute to exercise it. I understand, however, that your Lordships take a different view, and consider that statutory authority is required before our courts can exercise extra-territorial criminal jurisdiction even in respect of crimes of universal jurisdiction. Such authority was conferred for the first time by section 134 of the Criminal Justice Act 1988, but the section was not retrospective.

This is a significant statement by Lord Millett because of its emphasis on customary as opposed to conventional arrangements for jurisdiction in in respect of the crime of torture, having earlier advised that ‘[t]he jurisdiction of the English criminal courts is usually statutory, but it is supplemented by the common law’—and that ‘[c]ustomary international law is part of the common law, and accordingly I consider that the English courts have and always have had extraterritorial criminal jurisdiction in respect of crimes of universal jurisdiction under customary international law’.270 That said, in the designations of universal jurisdiction made in his analysis, Lord Millett proved far too fond of passive language so that we are none the wiser on what it is that custom is actually providing for: international crimes, it is said, attract universal jurisdiction;271 courts possess extraterritorial jurisdiction in respect of torture.272 No statutory authority is required to exercise this jurisdiction.273 None of this enlightens us, however, as to whether custom imposes an obligation on states to take jurisdictional action or merely confers on them an entitlement to that effect. Nevertheless, we can perhaps infer that the ‘supplement’ of the common law as derived from custom is not likely to be more exacting or onerous on states than that which is to be found in treaties.274 Furthermore, the main authorities preyed in aid by Lord Millett—principally Attorney General of Israel v Eichmann275 and Demjanjuk v Petrovsky276—impart a common refrain of an entitlement for jurisdictional action. As such, we have in mind that Lord Millett intended to say that custom provided for permissive universality in respect of torture, and that it had done so for at least a generation—but precisely when provision had been made for this (‘well before 1984’, ‘it had done so by 1973’), it is evidently rather more difficult to say.

270 R v Bow Street Metropolitan Stipendary Magistrate, ex parte Pinochet (No. III) (n. 253), 276. See further Meron (n. 176), 4–6. 271 Ibid., 275 (including war crimes, 274–75). 272 Ibid., 276. 273 Ibid. 274 Note, though, the nuanced reflection that customary international law ‘is part of English law, as distinct from English common law, even if this has not always been apparent. It comprises an autonomous non-statutory strand of English law, alongside common law.’ O’Keefe (n. 266), 301. 275 nn. 112 and 128. 276 (1985) 603 F Supp. 1468; affirmed 776 F 2d 571 (‘certain offences may be punished by any state because the offenders are enemies of all mankind and all nations have an equal interest in their apprehension and punishment’).

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Establishment and Change through Treaties 297

V. Conclusion The sixth preambular recital of the 1998 Statute of the Rome International Criminal Court provides that it is ‘the duty of every State to exercise criminal jurisdiction over those responsible for international crimes’277 but, as this chapter has sought to show as it has moved from example to example, conventional developments have produced a remarkably rich and diverse tapestry of rules and ideas that inform the current law and practice on jurisdiction. We have endeavoured to trace these developments in some detail as they form a modern rejoinder to the ‘hundreds of national adjudications, [the] petty incidents, and . . . informal settlements of a more prosaic type’278 that delivered the 1935 Draft Convention on Jurisdiction with Respect to Crime. That draft convention, of course, was never to see the light of day but, at the time of writing this conclusion, another draft convention has been presented for consideration: this time, it has arrived courtesy of the International Law Commission and it is in respect of crimes against humanity—where, once again, the levers of jurisdiction have been engaged on multiple fronts,279 bringing us one step closer to ‘a comparable international indignation’280 that we have witnessed for other international crimes.281 277 2187 UNTS 90. 278 n. 3. 279 Art. 6 of the Draft Convention (on the establishment of national jurisdiction): 1. Each State shall take the necessary measures to establish its jurisdiction over the offences referred to in draft article 5 in the following cases: (a) when the offence is committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) when the alleged offender is a national of that State or, if that State considers it appropriate, a stateless person who is habitually resident in that State’s territory; (c) when the victim is a national of that State if that State considers it appropriate. 2. Each State shall also take the necessary measures to establish its jurisdiction over the offences referred to in draft article 5 in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite or surrender the person in accordance with the present draft articles. 3. The present draft articles do not exclude the exercise of any criminal jurisdiction established by a State in accordance with its national law. UN Doc. A/CN.4/L.873 (3 June 2016). This is a much more exacting provision than Art. 4 of the Draft Convention (‘Obligation of prevention’) where ‘[e]ach States undertakes to prevent crimes against humanity, in conformity with international law, including through: (a) effective legislative, administrative, judicial or other preventive measures in any territory under its jurisdiction or control; and (b) cooperation with other States, relevant intergovernmental organizations, and, as appropriate, other organizations.’ UN Doc. A/CN.4/853 (2 June 2015). This appears to repeat the dichotomy between the obligations of suppression and jurisdiction from the Geneva Conventions of Aug. 1949 (see nn. 159–68). 280 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (n. 144), 78 (para. 51). 281 Note, though, the seventh preambular recital of the Draft Convention—‘recalling . . . that it is the duty of every State to exercise its criminal jurisdiction with respect to crimes against humanity’. See UN Doc. A/CN.4/L.892 (26 May 2017). This very much carries shades of the preamble of the Rome Statute (n. 277). However, the preamble also recognizes (in its third recital) that ‘the prohibition of crimes against humanity is a peremptory norm of general international law (jus cogens)’.

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298 Dino Kritsiotis The chapter has found that the principles of (prescriptive) jurisdiction have certainly come with their uses in analysing conventional arrangements on jurisdiction—but they have also come with their limitations. This aspect has perhaps gone unnoticed for a good long while as we have flocked to ritualistic and even choral recitations of which principle (or set of principles) might be relevant to this or that treaty provision. This is as good as far as it goes, but the conventional arrangements have thrown into stark relief the fact that a normative claim is encoded alongside the factual matrices that have given these principles their foundation and overall vitality. In the modern period, and perhaps most illustriously, we saw this with respect to the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide282 and, then, with respect to the four Geneva Conventions of August 1949, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, and, finally, the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. At one and the same time, we have also explored the comparative value of the customary international law position on jurisdiction in respect of certain crimes,283 and this has only served to reinforce the importance of the normative dimension of the principles of (prescriptive) jurisdiction as we know and use them.284 Our examination of treaties, of the treaty form, has indicated the expanding repertoire of jurisdictional arrangements that states have developed over time, occurring apart from the numerous institutional infrastructures that have come to pass since the end of the Cold War. There is something to be said for assessing the relation that these principles have or are intended to have with one another, what meaning they bring to the design or ambitions of a given treaty, but, in this chapter, we have also come to realize how the rules on jurisdiction intend for a much deeper relationship between treaty partners through the operation of the principle of aut dedere aut judicare: what the one does or does not do affects how the other must behave. These intricacies have not marked the ebb and flow of international custom,285 but they have also necessitated a more detailed investigation of what treaties in fact provide—an approach that has come at the expense of providing of a comprehensive catalogue of the jurisdictional provisions of all treaties. The depth of detail has thus been preferred to the breadth of further examples—and there really is no shortage of examples to choose from. As a final matter, we have sought in this chapter to work through the principles of prescriptive jurisdiction as they have been expressed or invoked in treaty form. Occasional emphasis or points of analysis have been spent on the question of prerogative jurisdiction, where the principle of territoriality is somehow imperative to that understanding.286 Yet, a proper and detailed intimacy with the conventional rules has given us pause to rethink the contours of the often crude bifurcation of competences that has affected 282 Lest we forget: see also the 1926 League of Nations Convention to Suppress the Slave Trade and Slavery (n. 28) and the 1937 League of Nations Convention for the Prevention and Punishment of Terrorism (n. 82). 283 See further n. 26. 284 See esp. n. 193. 285 See Ryngaert (n. 179). 286 See the text accompanying n. 38.

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Establishment and Change through Treaties 299 thinking across generations, and certainly since the time of the seminal decision in the Lotus case in September 1927.287 More assuredly still, these conventional rules have made plain that it is no longer sufficient to think or speak in terms of the principles of prescriptive jurisdiction simpliciter, but, rather, to come to fuller terms with their normative instantiation—irrespective of their conventional or customary casting. To do so, new vocabularies and tropes are called for and are called for in the cause of systematic application—and these have been set out, and indeed argued for, throughout this chapter. 287 n. 42.

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Chapter 13

Ter r itor i a lit y a n d Gl oba liz ation Uta Kohl

I. Introduction

301

II. Reflections on Territory, Borders and Authority

303

III. Inconspicuous ‘Border Guards’ and Preventing ‘Leakages’ of Capital

307

II.1. The Dual Nature of ‘Territory’ and ‘Borders’ II.2. Territorial Sovereignty and the Public–Private Divide

III.1. Regulatory Law and the ‘Presumption against Extraterritoriality’ in US Litigation III.2. English Tort Litigation III.2.a. Removal of Protective Shields: Corporate Veil and Forum Non Conveniens III.2.b. Zambian Copper III.2.c. Nigerian Oil

IV. Conclusion

303 305

308 313 313 318 322

327

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territoriality and globalization 301

I. Introduction This chapter challenges the assumption that the territorial state is fundamentally unsuited to twenty-first-century manifestations of globalization in the form of evertightening economic integration and all-pervasive global communication networks.1 In fact, the accuracy of that assumption depends entirely on whose perspective one takes. The state—based on the idea of territorial sovereignty as conceived under public international law—provides the ideal mechanism for global capital and corporate activity to flourish with maximum efficiency and minimal accountability. The legal structure of the state facilitates a one-way porosity of national borders for the purpose of foreign wealth accumulation, whilst at the same time ring-fencing that wealth from leakages back to its ‘natural’ national beneficiaries. This is so in the case of tangible natural resources in the Global North–South divide, but it is also increasingly apparent in the battle over intangible resources—that is, trademarked brands, copyrighted material, and data within the Global North.2 Implicit in the argument is that although the state in the globalized world serves private corporate interests and related beneficiaries well, it fails those that look to the state as the champion of public interests. This is not to say that the territorial state is necessarily subject to global corporate capture, but that it has design features that lend themselves to such capture and have been moulded to that task. Furthermore, this discussion does not seek to deny the emergence of a myriad of global governance mechanisms and activities either,3 but rather to stress the active role of the territorial state in the creation and maintenance of the global economic order and its profound inequalities. Although it is correct to assert that the ‘forces [of globalization] have reduced the ability of states either to frame independent socio-economic, foreign 1 The debate about the end of the nation state and sovereignty is long-standing but has received new impetus through the global information technology. For a small selection of the discussion see Kenichi Ohmae, The End of Nation State: The Rise of Regional Economies (New York: Free Press, 1996); Susan Strange, ‘The Erosion of the State’, Current History 96 (1997): 365; Vito Tanzi, ‘The Demise of the Nation State?’, IMF, Working Paper No. 98/120, 1 August 1998; John H. Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (Cambridge University Press, 2006). For more sceptical accounts about the end of the State, see e.g. James D. Wilets, ‘The Demise of the Nation-State: Towards a New Theory of the State under International Law’, Berkeley Journal of International Law 17 (1999): 193; Martin Carnoy, ‘The Demise of the Nation State?’, Theoria: A Journal of Social and Political Theory 97 (2001): 69; Christopher Rudolph, ‘Sovereignty and Territorial Borders in a Global Age’, International Studies Review 7 (2005): 1; Edward S. Cohen, ‘Globalization and the Boundaries of the State: A Framework for Analyzing the Changing Practice of Sovereignty’, Governance: An International Journal of Policy and Administration 14 (2001): 75. 2 See e.g. Marketa Trimble, ‘Geoblocking and “Legitimate Trade” ’, in Christopher Heath, Anselm Kamperman Sanders, and Anke Moerland (eds.), Intellectual Property and Obstacles to Legitimate Trade (London: Wolters Kluwer, 2018). See also William J. Drake, ‘Territoriality and Intangibility: Transborder Data Flows and National Sovereignty’, in Kaarle Nordenstreng and Herbert I. Schiller (eds.), Beyond National Sovereignty: International Communications in the 1990s (Norwood: Ablex, 1993), 259. 3 Neil Walker, Intimations of Global Law (Cambridge University Press, 2015); Neil Walker (ed.), Sovereignty in Transition (Oxford: Hart Publishing, 2003), 167, 167.

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302 uta kohl and defence policies, or to draw on or forge a national identity capable of sustaining an allegiance to the public good’,4 such a perspective constructs the state as a victim of globalization only and fails to acknowledge it as one of its key sponsors, propagators, and beneficiaries. The arguments are made against two contexts, one general, the other specific. The general context is provided by the territorial paradigm of the nation state, as expressed through jurisdictional rules and principles under public and private international law— both of which allocate regulatory authority in transnational settings.5 These rules take prominence in respect of cross-border activity, including the global economy, when they are designed to bridge the gap between the territorial state and such activity. They draw the line in the sand on who can regulate whom; and given that regulation in the transnational economic sphere is largely about the allocation or reallocation of resources, these rules play a significant role in the global distribution of wealth. This chapter focuses on jurisdiction under private and public international law, but the functional scope of these allocation regimes as far as the global economic sphere is concerned must be understood against the wider context of international trade and investment law. Agreements by the World Trade Organization (WTO), for example, may be usefully understood as ‘negative’ jurisdictional regimes: they open borders by disallowing regulatory restrictions by states on foreign economic actors that would otherwise fall within their territorial scope.6 They create regulatory no-go zones and thus diminish the authority of states as a condition for participating in the global marketplace.7 For example, attempts to create economic borders around a state through regulation that advantages local producers over foreign exporters or favours some foreign exporters over others, would generally be struck down as illegal protectionism. International trade and investment law provides the wider economic and legal setting for the chapter insofar as it 4 Richard Bellamy, ‘Sovereignty, Post-Sovereignty and Pre-Sovereignty: Three Models of the State, Democracy and Rights within the EU’, in Neil Walker (ed.), Sovereignty in Transition (Oxford: Hart Publishing, 2003), 167, 167. However, see Martti Koskenniemi, ‘What Is International Law For?’, in Malcolm D. Evans (ed.), International Law, 3rd edn (Oxford University Press, 2010), 32, 37: ‘no alternative to statehood has emerged. None of the normative directions—human rights, economic or environmental values, religious ideals—has been able to establish itself in a dominating position. On the contrary, what these values may mean and how conflicts between them should be resolved is decided largely through “Westphalian” institutions.’ 5 Another legal framework that contributes to the perpetuation of the North–South divide is the territorial and state-centric conception of human rights, see Uta Kohl, ‘Corporate Human Rights Accountability: The Objections of Western Governments to the Alien Tort Statute’, International and Comparative Law Quarterly 63 (2014): 665; more comprehensively, see Sarah Joseph, Corporations and Transnational Human Rights Litigation (Oxford: Hart Publishing, 2004); and, more recently, Jena Martin and Karen E. Bravo (eds.), The Business and Human Rights Landscape (Cambridge University Press, 2016). 6 See e.g. Janet Dine, Companies, International Trade and Human Rights (Cambridge University Press, 2005), 97 et seq. As discussed later, IMF and World Bank conditionalities reduce the effective sphere of ‘national sovereignty’ in many developing countries. 7 Territorial assertions of jurisdiction that could be validly made under public international law can be challenged on the basis of their inconsistency with trade commitments, e.g. United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WTO Appellate Body, 7 April 2005, WT/DS285/AB/R.

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territoriality and globalization 303 promotes the opening or dismantling of economic state borders to allow access to resources and markets. The discussion focuses on the selective closing of state borders, in the public law context, through, for example, the presumption against extraterritoriality and, in the private law context, through disallowing tort claims based on the rules of private international law. The overall hypothesis is that the opening and closing of borders through law enables states to allow resources to enter with ease and leave with difficulty. That one-way flow of wealth or capital is particularly pronounced in the global North–South divide. In other words, the rules of jurisdiction are far from economically or politically neutral but internalize the socio-economic interests of states as body corporate in themselves and on behalf of their domestic corporations. The specific context against which the arguments are made is provided by US cases on the presumption against extraterritoriality, on the one hand, and recent corporate cross-border tort litigation before English courts, on the other hand.

II. Reflections on Territory, Borders and Authority II.1. The Dual Nature of ‘Territory’ and ‘Borders’ Before turning to these cases, it is useful to reflect upon the concept of territory and the role it plays within the global economy. As a starting point, although the term ‘territory’ appears to refer to land itself, it is in fact a legal concept that describes a relationship involving land of one party vis-à-vis other parties. This becomes more apparent when one considers the analogous domestic legal concept of ‘property’. Property does not refer to the thing itself but rather to entitlements of one person vis-à-vis other persons involving a particular object, such as a chattel or a plot of land. Similarly, the concept of territory concerns the entitlement—involving a portion of the globe—of one state vis-à-vis individuals and other states. The nature of that entitlement is that the state can exercise authority on the land to the exclusion of other states: Territory is, of course, itself a geographical conception relating to physical areas of the globe, but its centrality in law and international law in particular derives from the fact that it constitutes the tangible framework for the manifestation of power by the accepted authorities of the state in question.8

Buxbaum puts it in more unequivocal terms when she says: ‘ “Territoriality” and “extraterritoriality” . . . are legal constructs. They are claims of authority, or of resistance to that authority, that are made by particular actors with particular substantive interests to 8 M. N. Shaw, ‘Territory in International Law’, Netherlands Yearbook of International Law 13 (1982): 61, 62 (emphasis added).

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304 uta kohl promote.’9 The complementary concept of ‘borders’ also appears to be quintessentially physical; yet, much like territory, it is a construct that defines relationships of actors around a physical reality. Borders delimit the boundaries of the ‘manifestations of power’ by a state vis-à-vis individuals and other states. On one level, they are intangible demarcations concerning an area of land created through public international law. Even where fences, walls, or border posts are erected on borders, these merely externalize them in a tangible way and partly enforce them, but they do not create them. Their existence has an absolute quality, first, by defining the spatial extent of state power and, second, by laying down the constitutional formal paradigm that state authority is exclusive within that space. On another level, territorial borders can effectively be erected or dismantled—as a matter of degree—in numerous ways depending on the context. In international trade, for example, the imposition of import or custom duties by a state or group of states, such as the European Union, creates economic barriers on the importation of goods and, if these duties are high enough, they become insurmountable economic borders. In contrast, a decision to allow a foreign investor to construct a local utility with the profits being repatriated, dismantles an economic border which is ‘enacted’ through a multitude of transnational communications and transactions. In the field of communications, if a state imposes blocking orders on its Internet Access Providers in relation to certain online material, it erects cyber-borders that shape the domestic online space. In these examples, dematerialized borders are created through legal provisions and often enforced through domestic actors which are only rarely situated at the physical boundaries of the territory.10 Importantly, in these instances, borders are not an all-or-nothing affair, but rather more-or-less porous depending on the legal provisions that create the barriers for the flow of goods, services, capital, or people across the state borders. The ‘border guards’ here are gatekeepers of various descriptions, from state institutions that create or dismantle barriers vis-à-vis foreign actors, to banks and other large corporate actors or communication intermediaries that further implement these laws. This dual existence of territorial borders, as both absolute markers of state authority and highly flexible creations that allow varying porosity depending on state law and policy, is in line with the conception of statehood under public international law in terms of ‘territorial sovereignty’. On the one hand, territorial sovereignty as the key pillar of the global legal order manifests itself as the inviolable constitutional paradigm that enjoys utmost sanctity within the international legal order. Within this meaning, territorial sovereignty is indivisible and reflects the fact that the ‘territory’ is not just an attribute of state power but a constitutive element of statehood: the state has 9 Hannah Buxbaum, ‘Territory, Territoriality, and the Resolution of Jurisdictional Conflict’, The American Journal of Comparative Law 57 (2009): 631, 635. 10 In the specific instance of migration, dematerialized border controls are effected through many direct or indirect internal ID requirements for the purposes of work, accommodation, or access to public services, such as health and education. For a critique of immigration controls and underlying motives, see Bridget Anderson, Us and Them?: The Dangerous Politics of Immigration Control (Oxford University Press, 2013). For the trade context, the discussions in Heath et al. (n. 2).

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territoriality and globalization 305 authority over its territory and also is its territory.11 As such, territorial sovereignty is an all-or-nothing affair. On the other hand, territorial sovereignty is—like all authority— also highly divisible and can be divided and transferred in parts in a myriad of ways.12 Here authority as an attribute of state power can be exercised or not in respect of different matters, and when it is exercised it may be in ways that reduce the realm of future exercises of that power—for example, through entering into international treaties, including trade agreements. Considering by analogy the domestic law concept of property, it is entirely feasible for authority or control over a piece of land to be divided into multiple, mutually compatible claims. Legal devices create different, parallel proprietary interests in the varying resources land has to offer. Under English law, for example, ownership of land can be fragmented into freehold and leasehold estates, interests under a mortgage or other proprietary charges, easements, private and public rights of way, and licences or concessions for the resources in the ground.13 Equally, territorial authority can be divided to confer control over different resources to different stakeholders, or to limit or share the use of certain territorial resources, such as fishery in the territorial sea with other states and private parties. The dual nature of territoriality means that indivisible territorial sovereignty can be fully intact when that authority has also been fragmented and transferred. This duality is not an expression of de jure versus de facto control, given that the divisibility of authority over territory is as much embedded in law as the indivisibility of territorial sovereignty. The duality exists and can exist comfortably through the creation of different layers of legal meaning: legal arrangements in one layer do not affect the other. However, these layers may be readily conflated by different actors to promote their interests; for example, appeal to ‘territorial sovereignty’ in its indivisible meaning (first layer) may be selectively made to support the closing of territorial borders by denying entitlements of, or claims by, foreign actors (second layer).

II.2. Territorial Sovereignty and the Public–Private Divide An important additional building block in contextualizing ‘territorial sovereignty’ in the global economic sphere is the public–private divide. This division is of relatively recent origin; it emerged in the mid-nineteenth century14 and ‘was critical to liberating 11 F. A. Mann, ‘The Doctrine of International Jurisdiction Revisited after Twenty Years’, Recueil des Cours 186 (1984): 9. 12 See also, the four-part sovereignty typology in Stephen D. Krasner, Sovereignty: Organised Hypocrisy (Princeton University Press, 1999) and for the idea of ‘economic sovereignty’ e.g. A. V. Lowe, ‘The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution’, International and Comparative Law Quarterly 34 (1985): 724. 13 Generally, see Sukhninder Panesar, General Principles of Property Law (London: Longman, 2001), 20 et seq. 14 Consistently, the term ‘private international law’ was first used by Joseph Story, Commentaries on The Conflicts of Law (Boston: Hilliard, Gray and Co., 1834).

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306 uta kohl market forces from state regulation’15 and ‘closely associated with the idea that the market was a neutral, apolitical institution for allocating liability and maximizing productivity’.16 The division has the effect of prima facie insulating economic activity from state regulation through the fiction that statehood or government is principally neither about, nor affected by, the (private) economic sphere and thus presumptively not legitimized in interfering with it. In the transnational context, it explains the migration of the law on cross-border economic activity from state-based public international law to domestic private law—that is, private international law. For the purposes of this discussion, the public–private division holds two important insights. First, as shown in the next section, there are clear parallels in the trend of opening borders for wealth acquisition and closing them to prevent leakages to the outside in both sets of cases. Second, in terms of international law, locating economic activity within the ‘private’ sphere shapes the intersection of territorial sovereignty and the global economic sphere. The private cloak turns what would otherwise be significant inroads into, and infractions of, territorial sovereignty into unexceptional economic activity that leaves territorial sovereignty perfectly intact, even in its divisible dimension. Private interests in land, whether held by domestic or foreign actors, are—as a matter of law—incapable of diminishing sovereignty. This is regardless of whether such ownership has profound impacts on the national economic sphere, governmental function, and indeed the living space for the local population. Sassen, for example, documents the steep rise worldwide (2006–12) of foreign land acquisitions, particularly in the Global South, through sales, leases, and concessions by ‘governments, sovereign wealth funds, foreign firms, nationally based foreign corporations and investment banks’ for biofuels, notably palm oil plantations, foods crops, and forests,17 often with drastic consequences for the local populations, including their expulsion: [T]hey transform sovereign national territory into a far more elementary condition— land for usufruct. This process brings with it a degrading of the governments that sold and leased the land. It evicts farmers and craftspeople, villages, rural manufacturing districts, smallholder agriculture districts, all of which degrades the meaning of citizenship for local people. And when there are no long-term inhabitants, these acquisitions often include uses that poison water, air, and land. Such material practices reconstitute parts of national territory.18 15 J. R. Paul, ‘The Isolation of Private International Law’, Wisconsin International Law Journal 7 (1988):149, 163. See also Alex Mill, ‘The Private History of International Law’, International and Comparative Law Quarterly 55 (2006): 1, 44. 16 Paul (n. 15), 153. P. K. O’Brian, ‘Fiscal and Financial Preconditions for the Rise of British Naval Hegemony, 1485–1815’, LSE Economic History Department, Paper 91 (2007). 17 Saskia Sassen, ‘Land Grabs Today: Feeding the Disassembling of National Territory’, Globalizations 10 (2013): 25, 29 et seq.; Phillip McMichel, ‘Land Grabbing as Security Mercantilism in International Relations’, Globalizations 10 (2013): 47; Saskia Sassen, Expulsion: Brutality and Complexity in the Global Economy (Cambridge MA: Harvard University Press, 2014). 18 Sassen, ‘Land Grabs Today’ (n. 17), 40.

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territoriality and globalization 307 As private property cannot—as a matter of law—threaten territorial sovereignty, private activities are, paradoxically, given greater latitude to ‘interfere’ with the affairs of a state than would be tolerated in the case of foreign public acts. In theory the state remains the final authority over all the land and activities within its boundaries. However, the state’s power to impose public interest restrictions—such as through planning laws, labour laws, or environmental or health and safety standards19—let alone to resist or reverse certain foreign investments is frequently severely restricted. Sovereign authority, particularly in developing countries, will often have been signed away to the International Monetary Fund (IMF), the World Bank, WTO or bilateral investment treaties via commitments to trade liberalization, privatization, deregulation, and security of property rights, as conditionality in return for loans, development aid, and access to foreign markets.20 Yet although in these cases the state’s restrictive competence vis-à-vis foreign economic actors is compromised, its facilitative competence vis-à-vis the same actors, in term of granting and then maintaining cheap and secure access to resources and labour, is fully functioning. For the purposes of this discussion, the ‘private’ sphere may be understood as creating a third layer of legal meaning vis-à-vis territorial sovereignty insofar as private activity, interests, and actors are—as a matter of law or legal fiction—taken to be incapable of even coming into contact with state sovereignty. When the state sells land or grants mining concessions to foreign actors or allows other economic activities on its territory, its sovereignty is not transferred or limited in the way that it would be if it was subject to a commitment under an international investment treaty or an agreement with the IMF. This has the tandem effects of giving the private sphere freer rein and less visibility and thereby also less public scrutiny.

III. Inconspicuous ‘Border Guards’ and Preventing ‘Leakages’ of Capital This section explores the one-way porosity of territorial borders created through jurisdictional rules as applicable to public or regulatory law falling broadly within the ambit of public international law and then in the context of cross-border tort claims as governed by private international law. Despite the significant differences in factual contexts, legal claims, legal spheres, and national legal traditions, the pattern from the

19 Dine (n. 6). 20 See e.g. Eurodad, ‘World Bank and IMF Conditionality: A Development Injustice’, Eurodad Report, June 2006.

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308 uta kohl rules—as implemented by national judiciaries—shows an explicit or implicit bias against foreign victims of local corporate wrongdoers. The location of the victim within or without the borders is often the touchstone of success. The state—through the judiciary applying and enforcing local law—stops compensation being ‘repatriated’ across its borders to those with a legitimate claim. To argue that the state thereby simply fulfils its legitimate function to protect its economy, and locally established actors against foreign claims,21 is to acknowledge the role of the state in ring-fencing local capital, thus indirectly perpetuating global inequities. ‘Borders’ are the legal construct that facilitate such ring-fencing, and the judiciary becomes the de facto border guard.

III.1. Regulatory Law and the ‘Presumption against Extraterritoriality’ in US Litigation In cross-border criminal, regulatory, and other public law contexts, territoriality or territorial sovereignty is ‘implemented’ through various domestic legal mechanisms. Classically, in common law jurisdictions the well-known maxim ‘all crime is local’ was directly connected to territorial sovereignty in MacLeod v Attorney General for New South Wales (1891).22 Lord Halsbury explained the maxim by stating that ‘jurisdiction over the crime belongs to the country where the crime is committed’.23 Despite the apparent simplicity of this maxim, in the global economy much activity is located across countries. Here resort to legal fictions such as conduct crimes or result crimes have been used to legitimize the assertion of jurisdiction by a state.24 These legitimations occur broadly against the background of public international law which defines actual spatial boundaries of states with relative precision,25 but is much more ambivalent about the extent of the authority that attaches to that space. That authority can expand or contract depending on how readily a state relies upon a territorial link in respect of a particular transnational activity. The rules on state jurisdiction, as infamously widely defined in the Lotus case26—and their flip-side concept, the principle

21 Jean Gottmann, The Significance of Territory (Charlottesville: The University Press of Virginia, 1973), ch. 2, reflecting on the ‘security’ and ‘opportunity’ function of territory; further discussed in Shaw (n. 8), referring to the needs for security, stability, and identity. 22 In MacLeod v Attorney General for New South Wales [1891] AC 455. 23 Ibid., 458. 24 Matthew Goode, ‘The Tortured Tale of Criminal Jurisdiction’, Melbourne University Law Review 21 (1997): 411. The effects and conduct tests were also discussed in Morrisons v National Australia Bank Ltd, 130 S. Ct 2869 (2010). 25 But for the occasional boundary disputes. 26 SS Lotus (France v Turkey) [1927] PCIJ Series A, No. 10, 18, where the court commented that ‘the first and foremost restriction imposed by international law upon a State is that . . . it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial’.

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territoriality and globalization 309 of non-intervention27—are nothing but broad-brush principles that first reflect, and then allow for, much discretion on the part of states: [States] find their interests affected by the acts of others and attempt to influence those acts. They do so by internal development of culture, economy, and power; by achievements in technology, science, literature, and the arts; by international communication utilizing radio, press, popular periodicals and technical journals; by the travel and trade of their citizens; and by official utterances, legislative action, and diplomatic correspondence. International law is faced with the issue: When does proper influence become illegal intervention?28

Although the non-intervention principle is a crucial backstop for the stability of the global legal and political order, it generally comes into its own in cases of the use of force and other interferences by one state in the public affairs of another, but has much less to offer with respect to the economic sphere, even where the laws, as in the presumption cases below, have a strong public or regulatory dimension and cannot simply be dismissed as private law matters.29 Consistently it is not surprising that the ‘presumption against extraterritoriality’ which is another common law mechanism that ‘implements’ territorial sovereignty, has generally been understood as being based not on the demands of international law, but rather on the fact that a state legislature must generally be taken to have legislated only with domestic concerns in mind.30 This is persuasive given that a presumption is, on its own terms, always liable to be rebutted. Thus, the possibility of extraterritorial jurisdiction is implicit in the presumption, and thereby documents the permissiveness of international law, even if affected states have occasionally objected to such extraterritoriality on the grounds of interference with their sovereignty. Crucially for this discussion, whilst international law is relatively silent on the boundaries of territorial authority, states have self-imposed those borders in some situations but not others. The question is: in what circumstances do they decide to erect these borders?

27 Art. 8 of the Montevideo Convention on Rights and Duties of States (1933); The Final Act of the Conference on Security and cooperation in Europe Ninth Helsinki Declaration on Principles Guiding Relations between Participating States, 1 August 1975, 14 ILM 1292; see also Art. 2(7) UN Charter. Charles W. Kegley, Jr, Gregory A. Raymond, and Margaret G. Hermann, ‘The Rise and Fall of the Nonintervention Norm: Some Correlates and Potential Consequences’, Fletcher Forum of World Affairs 22 (1998): 81. 28 Sean Watts, ‘Low-Intensity Cyber Operations and the Principle of Non-intervention’, Social Science Research Network (2014): 7. See also Military and Paramilitary Activities in and against Nicaragua [1986] ICJ Rep. 14, para. 205: ‘Intervention is wrongful when it uses methods of coercion . . . The element of coercion . . . defines, and indeed forms the very essence of prohibited intervention.’ 29 The US has a long and controversial history of using private enforcement mechanisms for regulatory matters, such as antitrust enforcement, securities fraud, etc., see e.g. Daniel A. Crane, ‘Optimizing Private Antitrust Enforcement’, Vanderbilt Law Review 63 (2010): 675. 30 William S. Dodge, ‘Understanding the Presumption against Extraterritoriality’, Berkeley Journal of International Law 16 (1998): 85.

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310 uta kohl Recent US case law offers a rich commentary on the presumption against e xtraterritoriality, as a canon of statutory interpretation and in particular on the circumstances when US courts advocate territorial restraints under the cloak of the presumption the presumption. In the anti-trust case of F. Hoffman-La Roche Ltd v Empagran SA (2004),31 a number of companies including US companies were shown to have colluded in price-fixing. The defendant companies succeeded in excluding foreign victims from the litigation in respect of the harm they had suffered, by invoking the presumption against extraterritoriality for the Sherman Antitrust Act 1890.32 The US Supreme Court reasoned that the presumption was operative in respect of the foreign claimants and it did not matter that these harms were ‘intertwined with’ domestic price-fixing:33 But the higher foreign prices of which the foreign plaintiffs here complain are not the consequences of any domestic anticompetitive conduct that Congress sought to forbid, for Congress did not seek to forbid any such conduct insofar as it is here relevant, i.e. insofar as it is intertwined with foreign conduct that causes independent foreign harm. Rather Congress sought to release domestic (and foreign) anticompetitive conduct from Sherman Act constraints when that conduct causes foreign harm.34

So, despite the United States’ strong antitrust tradition, the Court’s interpretation of the statute expressly immunized local companies from antitrust obligations vis-à-vis foreign claimants. It means that US companies can collude on higher prices for foreign customers, when the same behaviour would attract severe sanctions in respect of the local market. The Court’s relatively frequent appeal to customary international law and respect for state sovereignty appears hollow when one considers its aggressive antitrust stance towards foreign defendant companies that impact on the US market.35 Subjecting a foreign company to local penal or quasi-penal law when that law has no equivalent in the foreign company’s home jurisdiction would appear to be far more interventionist than allowing foreign victims to benefit from local law where local companies were involved in the wrongdoing. It is certainly unlikely that states would consider the latter an inference with their sovereignty. Similarly, the Supreme Court also applied the presumption against extraterritoriality to the Securities Exchange Act 1934 in Morrisons v National Australia Bank Ltd (2010)36 31 F. Hoffmann-La Roche Ltd v Empagran SA, 124 S. Ct 2359 (2004). 32 Following the Foreign Trade Antitrust Improvements Act 1982, the Sherman Act 1890 does not apply to foreign commerce unless that commerce significantly harms domestic commerce, i.e. has a ‘direct, substantial, and reasonably foreseeable effect’ on it. 33 F. Hoffmann-La Roche Ltd v Empagran SA (n. 31). 34 Ibid., part IV (2004) (emphasis in the original). 35 Scott A. Burr, ‘The Application of U.S. Antitrust Law to Foreign Conduct: Has Hartford Fire extinguished Considerations of Comity?’, University of Pennsylvania Journal of International Law 15 (2014): 221. 36 Morrison v National Australia Bank Ltd, 130 S Ct 2869 (2010); discussed in Genevieve Beyea, ‘Morrison v. National Australia Bank and the Future of Extraterritorial Application of the U.S. Securities Laws’, Ohio State Law Journal 72 (2011): 537; Rachel Doyle, ‘The Presumption against Extraterritoriality:

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territoriality and globalization 311 where the fraudulent misrepresentation of a US subsidiary of an Australian company led to an overvaluation of the latter’s shares and caused loss to Australian investors who had purchased those shares on non-US stock exchanges. The Court reasoned that, in the absence of specific language in the Act, ‘context can be consulted as well’ and then found that the Act focused ‘not upon the place where the deception originated, but upon purchases and sales of securities in the United States’.37 Thus Australian investors could not hold USA fraudsters accountable under the Act. It may be argued that given that the Act establishes criminal offences with severe penalties for security fraud, the Act’s focus would be, like criminal law generally, on the inherently reprehensible act, rather than on the harm caused. The Court also reasoned that the reference to ‘national public interests’ in the Act’s definition of security transactions ‘pertains [not] to transactions conducted upon foreign exchanges and markets’38 and dismissed the Solicitor General’s arguments of the purposes of the Act: ‘achieving a high standard of business ethics in the securities industry, ensuring honest securities markets and thereby promoting investor confidence, and preventing the United States from becoming a “Barbary Coast” for malefactors perpetrating frauds in foreign markets’.39 These purposes were ‘admirable’ but of no further concern to the Court. By implication domestic actors are free to commit fraud abroad.40 Notably various states, including the United Kingdom, France, and Australia, filed amicus curiae briefs arguing against the extraterritorial application of the Act. The UK brief stated that ‘the broad assertion of extraterritorial jurisdiction by the United States courts implicates the legitimate sovereign interests and policy choices’.41 Contrary to appearances, this objection is not driven by the concern that UK investors may successfully sue US corporations for securities fraud, but rather that the Act would also be extended to securities fraud by UK corporations.42 This in turn makes these objections entirely consistent with the proposition advanced here, namely the state’s essential role as a shield for protecting local economic interests from foreign claims, regardless of their merit, within a global economy. In both Empagran and Morrison, the decision to impose borders around the US through the presumption occurred against the background of open border trade in vitamin pills and securities, respectively, within the Global North. The subsequent selective erection of borders in order to ring-fence local corporate capital is symptomatic of the competitiveness of states within the globalized marketplace. This competitiveness is not particularly problematic given the relative equality of the state participants in the above cases, even if it may be criticized for its protectionism. However, the analysis Pakootas v Teck Cominco Metals Ltd. and Transboundary Environmental Harm after Morrison v. National Australia Bank Ltd.’, Social Science Research Network, 30 May 2013. 37 Morrisons v National Australia Bank Ltd (n. 24), 2883 et seq. 38 Ibid. (emphasis in the original). 39 Ibid. 40 Ibid. 41 Brief of the United Kingdom of Great Britain and Northern Ireland as Amicus Curiae in Support of Respondents, 29 Morrison 130 S. Ct 2869 (No. 08–1191), 2; discussed in Beyea (n. 36), 555 et seq. 42 David Greene, ‘The US Ruling on Morrison v NAB Deals a Blow to the International Claims Culture’, The Guardian, 28 June 2010.

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312 uta kohl changes when the claims originate from states with much less economic power, as in many cases that were brought under the Alien Tort Statute (ATS) and alleged corporate human rights abuses in the Global South. The US Supreme Court put most of these claims to bed in Kiobel v Royal Dutch Petroleum Co. (2013)43 and it did so by invoking the presumption against extraterritoriality.44 The 200-year-old Alien Tort Statute had been successfully adapted to allow ‘aliens’ to sue in tort for egregious breaches of human rights committed outside the United States, generally in the Third World, and invariably by transnational corporations (TNC). In Kiobel it was Nigerian farmers that alleged Shell’s complicity in ultraviolent Nigerian military crack-downs to supress protests by the Ogoni community against the environmental devastation caused by Shell’s operation. The Supreme Court held that the presumption against extraterritoriality was not displaced by the Act and thus it was only claims that ‘touch[ed] and concern[ed] the territory of the United States . . . with sufficient force’ which fell within the scope of the Act.45 The Court further commented: ‘Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.’46 Notably since then foreign corporations have been expressly excluded from ATS claims in Jesner v Arab Bank (2018).47 It is also noteworthy that, in a previous ATS case against Shell plc it had already been established that Shell’s ‘presence’ in the United States was not a ‘mere corporate presence’ but a ‘presence’ that was sufficient to satisfy the normal due process requirement under the US constitution—that is, the minimum contacts test that makes it fair and reasonable to sue a defendant in the United States.48 Of course, that test is usually invoked by local claimants against foreign defendants rather than by foreigners, or ‘aliens’ as expressly permitted by the ATS. For the latter, the Court created a higher threshold; and thus again the foreignness of the victim became a touchstone of legal accountability. It also remains contentious whether the ATS should extend to human rights claims against corporations at all on the basis that international criminal law is arguably not applicable to corporate actors.49 Certainly states have shown a lot of resistance to such corporate liability.50 Thus Kiobel is a prime example of the legally institutionalized hostility to foreign claims as inversely proportionate to the protectiveness of local corporate actors. Having said that, the ATS, which dates back to 1789, appears on its face remarkably internationalist in character, most notably by creating an explicit cause of action for foreign claimants (i.e. ‘aliens’).51 In fact, the ATS was not so much aimed at foreign claimants, but rather at claimants within the United States 43 Kiobel v Royal Dutch Petroleum Co., 133 S. Ct 1659 (2013); discussed in Kohl (n. 5). 44 All nine judges of the Supreme Court agreed that the case should be dismissed for lack of a sufficient connection with the United States. 45 Kiobel v Royal Dutch Petroleum Co., 133 S. Ct 1659 (2013) (emphasis added). 46 Ibid. (emphasis added). 47 Jesner v Arab Bank, 584 US (2018). 48 Wiwa v Royal Dutch Petroleum Co., 226 F 3d 88 (2d Cir. 2000). 49 Kiobel v Royal Dutch Petroleum Co., 621 F 3d 111 (2d Cir. 2010). 50 Kohl (n. 5). 51 Unusually, the ATS also gives individuals the rights to sue for a breach of international law which under classic international law is a right reserved to states.

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territoriality and globalization 313 who had been denied remedies on the basis of their foreign citizenship,52 which makes the Act rather more unexceptional by contemporary standards.

III.2. English Tort Litigation Whilst the presumption against extraterritoriality is applicable to legislation and thereby, in the context of the economic sphere, generally to more deliberate regulatory or public law interventions, this part explores to what extent the systemic bias against foreign claims is also evidenced in the private law sphere. The case examples are Vedanta Resources plc and Another v Lungowe and Others (2019)53 and Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) (2018)54 in which victims of the operations of subsidiaries of English parent companies in the Global South brought negligence claims against the parent companies in English courts. The question is to what extent the foreignness of the victims becomes the touchstone of corporate accountability and the legitimacy of that position.55 The legal barriers in transnational cases flow from the rules of private international law, which are used to decide when to erect national borders or, more precisely, their relative porosity vis-à-vis foreign entitlements. The English tort litigation bears a close resemblance to ATS litigation, which was discussed earlier. An essential difference, however, is that ATS litigation is steeped in human rights discourse which makes it more potent and controversial in equal measures—raising the stakes on both sides of the conflicts. Still the tort litigation before English courts arises out of similar factual scenarios that would make human rightsbased language not inappropriate, even if not easily accommodated within the framing of these claims as simple torts under domestic civil law. Human rights language is traditionally reserved to the ‘public’ sphere occupied by state authority. That these mere tort cases ultimately concerned the use of significant and valuable natural resources and de facto touched upon matters of important public interests and public regulation, or their absence, shines through the fact each of them involved thousands of claimants.

III.2.a. Removal of Protective Shields: Corporate Veil and Forum Non Conveniens There are two distinct legal developments that preceded the recent corporate tort litigation in England and paved its way. Their effect was to remove protective shields from English law that TNCs (and their home states, here the United Kingdom) have traditionally relied upon 52 John Haberstroh, ‘The Alien Tort Claims Act and Doe v. Unocal: A Paquete Habana Approach to the Rescue’, Denver Journal of International Law and Policy, 32 (2004): 231, 239 et seq. 53 Vedanta Resources plc and Another v Lungowe and Others [2019] UKSC 20, affirming Lungowe and Others v Vedanta Resources plc and Another [2017] EWCA Civ. 1528, and Lungowe and Others v Vedanta Resources plc and Another [2016] EWHC 975. 54 Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) [2018] EWCA Civ. 191, affirming Okpabi and Others v Royal Dutch Shell plc and Another [2017] EWHC 89. 55 See also AAA and Others v Unilever plc and Another [2017] EWHC 371.

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314 uta kohl to distance the parent from the liabilities of their foreign subsidiaries; subsidiaries that are frequently undercapitalized. First, although the doctrine of the separate legal personalities of each company within a group has for some time been susceptible to circumvention via negligence claims,56 the legal formalism in the treatment of the group as a multitude of completely separate legal units has remained a foothold of global corporate unaccountability.57 Yet, in Chandler v Cape plc (2012)58 where Mr Chandler suffered asbestosis contracted many years before as an employee of Cape’s subsidiary, the Court of Appeal made a chink in the corporate armour when it provided a strong affirmation of the possibility of direct parent liability: [T]he law may impose on a parent company responsibility for the health and safety of its subsidiary's employees. Those circumstances include a situation where . . . (1) the businesses of the parent and subsidiary are in a relevant respect the same; (2) the parent has, or ought to have, superior knowledge on some relevant aspect of health and safety in the particular industry; (3) the subsidiary's system of work is unsafe as the parent company knew, or ought to have known; and (4) the parent knew or ought to have foreseen that the subsidiary or its employees would rely on its using that superior knowledge for the employees’ protection.59

Although the court ‘emphatically’ rejected that it pierced the corporate veil, the i mposition of a direct duty of care based on the ‘assumption of responsibility’ by the parent to the employees of the subsidiary has the same substantive effect.60 The court was also at pains to say that its test was not a net that would catch every parent company and depended on the particular relationships between the companies in the group.61 Yet equally, it was not willing to fix such liability only to parent companies where their control over the subsidiary went over and above the normal incidents of parent–subsidiary relationship. The fact was that Cape’s group was entirely ‘normal’: the parent exercised financial control over capital expenditure, parent and subsidiary had common directors, and the parent 56 Chandler v Cape plc [2012] EWCA Civ. 525, paras. 40–2, 66, referring to the more recent English cases of Lubbe v Cape plc [2000] UKHL 41, paras. 20 et seq. (Lord Bingham). See also Connelly v RTZ Corp. (1999) CLC 533 and Ngcobo v Thor Chemicals Holdings Ltd and Others (January 1996, Unrep., Maurice Kay J). 57 Janet Dine, ‘Jurisdictional Arbitrage by Multinational Companies: A National Law Solution?’, Journal of Human Rights and the Environment 3 (2012): 44. 58 Chandler v Cape plc (n. 56); discussed in Daisuke Ikuta, ‘The Legal Measures against the Abuse of Separate Corporate Personality and Limited Liability by Corporate Groups: The Scope of Chandler v Cape plc and Thompson v Renwick Group plc’, UCL Journal of Law and Jurisprudence 6 (2017). For a more general critique of separate personalities of companies in a group and limited liability, see e.g. Hugh Goodacre, ‘Limited Liability and the Wealth of “Uncivilised Nations”: Adam Smith and the Limits of the European Enlightenment’, Cambridge Journal of Economics 34 (2010): 857. 59 Chandler v Cape plc (n. 56), para. 80. 60 Ibid., para. 69. The ‘assumption of responsibility’ test addresses the second and third element (proximity and ‘fair, just and reasonable’) in the test for a duty of care, established in Caparo v Dickman [1990] 2 AC 605, see Chandler v Caple plc, para. 62. 61 Chandler v Cape plc (n. 56), para. 67.

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territoriality and globalization 315 controlled certain activities of the subsidiary.62 Furthermore, the court stressed that the ‘systemic failure’63 in the subsidiary’s health and safety practices showed that Cape ought to have taken steps or given advice on the basis of its superior knowledge on health and safety and its group policy in this respect.64 Again, one might ask to what extent such superior knowledge is anything other than fairly standard for corporate groups, given the need for centralized decision-making on the group’s business activities to ensure its overall profitability. In short, the Cape group was a fairly ‘normal’ corporate group and its behaviour was (and is) by no means atypical. What was not so typical for a negligence claim against the parent of a TNC is that Chandler was a purely domestic case as Mr Chandler had suffered asbestos exposure in a factory near Uxbridge in England, and arguably herein lies the reason for the unusual robustness of the judgment to corporate group wrongdoing.65 The corporate personality presented an obstacle to intra-state justice delivery rather than a device for inter-state economic ring-fencing. If Chandler unwittingly dealt a blow to TNCs in England for potential negligence arising out of their overseas operations,66 the second development in Owusu v Jackson and Others (2005)67 removed a jurisdictional hurdle TNCs have also long appropriated for their purposes: the common law doctrine of forum non conveniens. What started off as a highly restrictive doctrine metamorphosed—both in the United States and England and Wales68—into a much wider discretionary rule in the mid-1970s: The approach to transnational forum non conveniens cases began shifting away from abuse of process thinking toward a most suitable forum approach . . . No longer would it be necessary to inquire whether retaining jurisdiction . . . would vex, harass, or oppress the defendant; instead the focus came to be the deceptively simple question of whether the forum selected by the plaintiff was inappropriate because of the lack of contacts between the forum and the dispute.69

Whilst the doctrine may be used to haul a foreign defendant before a local court, it is also employed to stay cases against local defendants. Thus, in both instances, it may be directed towards protecting the state’s economic interest by insisting on remedying local 62 Ibid., paras. 44 et seq. 63 Ibid., paras. 57, 72, 77. 64 Ibid., paras. 71–73, 78–80. 65 Similarly, in Connelly v RTZ Corp. plc [1998] AC 854, where the claimant Edward Connelly was domiciled in Scotland. 66 Note, in the litigation in Zambia and Nigeria, discussed later, the common law system of both States takes account of legal developments in England and Wales; so the Chandler’s ratio would be applicable. Okpabi and Others v Royal Dutch Shell plc and Another [2017] EWHC 89, paras. 56–61. 67 Case C-281/02, Owusu v Jackson [2005] ECR I-1383; Adrian Briggs, ‘The Death of Harrods: Forum Non Conveniens and the European Court’, Law Quarterly Review 121 (2005): 53; Jonathan Harris, ‘Stay of Proceedings and the Brussels Convention’, International and Comparative Law Quarterly 54 (2005): 933. 68 This shift was effected in the US by Piper Aircraft Co. v Reyno, 454 US 235 (1981), and in England by The Atlantic Star [1974] AC 436, followed by MacShannon v Rockware Glass Ltd [1978] AC 795 and Spiliada Maritime Corp. v Cansulex Ltd [1986] UKHL 10. 69 David M. Robertson, ‘Forum Non Conveniens in America and England: A “Rather Fantastic Fiction” ’, Law Quarterly Review (1987): 398, 405 et seq.

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316 uta kohl harm and by refusing to remedy local wrongdoing (by the parent company) that caused harm abroad. This second application of the rule must be understood against the context that bringing a claim to the defendant is widely considered the most appropriate default jurisdiction.70 It is the fairest to the defendant and also eases the enforceability of any eventual judgment.71 Yet, the newer wider forum (non) conveniens version could be used by defendants to argue for the removal of claims from their home turf. Under the prior narrower version it would have been ‘impossible for such a defendant to make a credible claim of vexation or harassment’.72 It was not long before TNCs routinely used the wider doctrine to seek to avoid local accountability to foreign claimants, and often— but not always—successfully so,73 most infamously in the US negligence case arising from the Indian Bhopal disaster, killing more than 2,000 people.74 Already in the 1980s, commentators pointed out that far from furthering the ‘comity of nations’ as claimed by judges, the doctrine often spelled the end of a case, rather than its beginning somewhere else.75 In the early 2000s, one commentator observed that ‘[t]he doctrine had proven time and again to be a significant obstacle for plaintiffs in developing countries who are seeking to sue a U.S.-based transnational corporations in the United States’.76 In the North–South divide, it functions to ring-fence gains from the Global South within the Global North. The powerful connections between international trade and tort law, public interest concerns and territoriality as ‘implemented’ through forum non conveniens shines through Paul’s incisive analysis in 1988: In weighing the interests of the United States in hearing the case, the court suppressed United States public policy concerns, such as the significant foreign relations and trade consequences, as well as the impact on United States regulatory policy, implicated by the Bhopal accident. For example, presuming that Union Carbide sought to move the case to India to avoid the potentially greater liability imposed by United States tort law, the United States had a strong interest in retaining jurisdiction in order to discourage the export of jobs . . . [T]he application of forum non conveniens insulates United States companies manufacturing abroad from strict United States regulatory standards and coincidentally undermines those domestic standards by forcing United States and foreign regulatory authorities to compete for scarce investment capital.77

70 In civil law jurisdiction, the default jurisdiction is based on the ‘domicile’ of defendant, and in common law jurisdiction on the ‘presence’ of the defendant in the forum. 71 For the difficulties of enforcing a foreign judgment see e.g. Adams v Cape Industries plc [1990] Ch. 433. 72 Robertson (n. 69). 73 Not successful in Lubbe v Cape plc (n. 56). 74 In re Union Carbide Corp. Gas Plant Disaster, 809 F 2d 195 (2d Cir. 1987); criticized by Joel R. Paul, ‘The Isolation of Private International Law’, Wisconsin International Law Journal 7 (1988): 149, 168 et seq. See also Malcolm J. Rogge, ‘Towards Transnational Corporate Accountability in the Global Economy: Challenging the Doctrine of Forum Non Conveniens in In Re: Union Carbide, Alfaro, Sequihua, and Anguida’, Texas International Law Journal 36 (2001): 299, 302 et seq. 75 Robertson (n. 69), 409, 420. 76 Rogge (n. 74), 299. 77 Paul (n. 74), 170.

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territoriality and globalization 317 This analysis still holds currency three decades later; decades that have witnessed an intensification of the ‘race to the bottom’, as described by Paul, as well as the large-scale relocation of manufacturing to developing countries—with forum non conveniens providing the necessary backing. Notably, this backing also entails costs for the Global North—for example, through the loss of jobs and pressure towards lower regulatory standards. From a corporate perspective, however, forum non conveniens is an essential tool to retain gains made through such forum-shopping. Although forum non conveniens has never been part of the EU jurisdictional regime,78 its application appeared to be intact for disputes that involved an English defendant being sued in England where the alternative venue for the action was a court from a non-Member State,79 namely the scenario in many would-be TNC negligence cases. This position was changed when the Court of Justice of the European Union (CJEU) in Owusu firmly applied the European jurisdictional regime to this type of scenario. In the name of legal certainty, it removed any discretion not to hear a case based on forum non conveniens, whenever a claimant sued a defendant in its domicile in England.80 One criticism of the ruling has been that it allows the civil lawyer’s preoccupation with principle and state interest to trump English pragmatism and ‘priority to doing justice to the parties’.81 This seems disingenuous in the particular context as the decision respects the claimant’s choice and places the action at the doorstep of the defendant. It also addresses the reality that a successful forum non conveniens plea is more often than not the end of the case rather than justice in the making. Perhaps the judgment should be understood as a ‘principled’ drive to extend transnational solutions considered fair and reasonable in the intra-European context (with limited capacity for corporate forum-shopping) to wider European-global interactions and disputes; there is some evidence to suggest that the CJEU was aware of the wider implications of the judgment for victims of TNCs and their overseas operations.82 Yet, the facts in Owusu itself are rather atypical in that not only was the first defendant a British national domiciled in England, but so was the claimant Mr Owusu who had injured himself on his holiday in Jamaica, where five further defendants were located. Thus comparable to Chandler, the Owusu scenario was not concerned with foreign victims. Briggs commented that ‘[t]he real, if collateral, victims of the ruling were the five Jamaican defendants, who knew that a claim against the English defendant would exercise a strong gravitational pull on those 78 Now contained in Regulation (EU) 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast). 79 Re Harrods (Buenos Aires) Ltd [1992] Ch. 72; applied in e.g. Lubbe v Cape plc (n. 56). 80 Case C-281/02, Owusu v Jackson [2005] ECR I-1383, para. 36: ‘the Brussels Convention precludes a court of a contracting state from declining the jurisdiction conferred on it by Article 2 of that Convention on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other contracting state is in issue or the proceedings have no connecting factors to any other contracting state’. 81 Trevor C. Hartley, ‘The European Union and the Systematic Dismantling of the Common Law of Conflict of Law’, International and Comparative Law Quarterly 54 (2005): 813, 815. 82 Opinion of the Advocate General Léger delivered on Owusu v Jackson (n. 80), paras. 167, 267–70, 274. Note Briggs (n. 67), 539, observed: ‘the court saw perfectly clearly the nature of the iceberg being floated towards it, and pressed the nuclear button’.

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318 uta kohl raised against them’.83 Wittingly or not, the judgment has had the effect of opening the gate (i.e. border), for victims in the Global South to sue TNCs in Europe. This decision is an outlier within the ‘normal’ judicial protective attitude towards local corporations vis-à-vis their responsibilities for harm caused beyond state borders. So how have Chandler and Owusu been put to the test in claims by victims from the Global South?

III.2.b. Zambian Copper The English tort case of Vedanta Resources plc and Another v Lungowe and Others (2019)84 provides a microcosm for the legacy of colonialism and its continuation through TNC activities that are facilitated by state territoriality. Zambia’s copper-belt is well known; its initial exploitation was tied up hand and foot with British colonialism, at first, via the British South Africa Company, a chartered company acting on behalf of the British government, and from 1924, under the status of a self-governing British protectorate, through the Anglo-American Corporation of South Africa. Following its independence in 1964, Zambia in part nationalized its copper industry, but struggled to make the mining sustainable and was not helped by the fall in the international price of copper in the mid-1970s.85 Partly under pressure from the IMF and the World Bank,86 and partly given its need for funding the long-term development of the industry through rehabilitation of the mines and new sourcing of ore,87 the government reversed the nationalization in the 1990s. Notably a key stakeholder in the privatization of the industry was the Anglo-American Corporation, the very company that had been at the heart of US and British imperialist mining ambitions in Southern Africa.88 All in all, Zambia had control over its copper resources via government majority shareholdings for about three decades, but ultimately and this is inextricably linked with its developmental stage, it lacked the capital and know-how to make it work. The mine at the centre of the Lungowe dispute has been in operation since 1937 and was then owned by the Anglo-American Corporation. The company was partly nationalized in 1970, with a 51 per cent stake held by state-controlled companies, but again privatized in the 1990s. In 2004 the first defendant, Vedanta Resources plc, an English holding company, acquired its 51 per cent stake in the Konkola Copper Mines plc (KCM),89 the Zambian company running the mine and the second defendant in the 83 Briggs (n. 67), 536. 84 Vedanta Resources plc and Another v Lungowe and Others [2019] UKSC 20, affirming Lungowe and Others v Vedanta Resources plc and Another [2017] EWCA Civ. 1528, and Lungowe and Others v Vedanta Resources plc and Another [2016] EWHC 975. 85 John Craig, ‘Putting Privatisation into Practice: The Case of Zambia Consolidated Copper Mines Limited’, The Journal of Modern African Studies 39 (2001): 389. 86 Ibid., 390, 394 et seq. 87 Ibid., 392. 88 Ibid. 89 Lungowe and Others v Vedanta Resources plc and Another [2016] EWHC 975, para. 13: ‘KCM was incorporated in Zambia as a public limited company for the purpose of privatising the mine. It was 65% owned by KCM Holdings SA (an Anglo-American subsidiary), and 35% by ZCCM-Investment Holdings plc, a State-owned company (“ZCCM”). In 2002, Anglo-American plc withdrew from KCM. In 2004, Vedanta Resources Holdings Limited (“VRHL”), a subsidiary of Vedanta (the first defendant), acquired a 51 per cent interest in KCM, the remaining 49 per cent being held by ZCCM.’

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territoriality and globalization 319 case, and increased its stake to 79 per cent in 2008. The remaining 21 per cent of the share capital was held by the Zambian state. KCM employs 16,000 people in Zambia, most of them in the mine, and is thereby the largest private employer in Zambia.90 The class action in England was brought by 1,826 Zambian citizens who were mainly subsistence farmers ‘earning considerably below the national average in Zambia . . . [which] is one of the world’s poorest countries’.91 There was some indication that a further 1,000 claimants would join the action.92 The allegations were that KCM’s Nchanga copper mine had, since 2005, polluted their local waterways and land upon which they depended for their agrarian livelihoods and daily lives. They sought damages for personal injury, damage to property, loss of income and loss of amenity as well as of enjoyment of land arising out of pollution and environmental damage caused by the mine. In stark contrast, the first defendant, Vedanta, a UK holding company, was extremely wealthy, with its worth estimated at around £37 billion. It had nineteen employees, eight of whom were directors, whilst its subsidiaries worldwide employ 82,000 people.93 Despite this and not atypically, its Zambian subsidiary, KCM, was—according to the court—in ‘significant financial difficulties’.94 The Supreme Court affirmed the judge’s and Court of Appeal’s decision to allow the actions against both Vedanta, the UK parent company, and KCM, the Zambian subsidiary, to go ahead in England. It rejected the various arguments staying the case against both defendants in favour of a Zambian court. In essence, the claim against Vedanta was judged sufficiently genuine and strong (i.e. ‘a real issue to be tried’) to justify proceedings before an English court, and the claim against KCM could be joined to those proceedings as the claimants would not receive ‘substantial justice’ in Zambia that would otherwise been the proper forum for it.95 This presents a significant victory for transnational equity in the global North–South divide—despite the facts that the ruling only concerned a preliminary issue. The preliminary issue of deciding in which state a dispute can or cannot be heard is in most of these cases not preliminary in a substantive sense at all, but outcome-determinative.96 Typically in this case, an insistence by the English court that the dispute must be decided before a Zambian court would have spelled the end of it for a combination of powerful reasons, as discussed by the courts: a lack of funding and the unavailability of

90 Ibid., para. 16. 91 Lungowe and Others v Vedanta Resources plc and Another [2017] EWCA Civ. 1528, para. 124. 92 Lungowe and Others v Vedanta Resources plc and Another (n. 89), para. 9. 93 Ibid., para. 15. 94 Ibid., paras. 79 et seq. 95 Vedanta Resources plc and Another v Lungowe and Others [2019] UKSC 20, paras. 60, 98–101. 96 The parties to the action often treat the case like full trials with the disapproval of the judges; ibid., para. 40; and Okpabi and Others v Royal Dutch Shell plc and Another (n. 66), paras. 9, 10, 12, 14, referring with approval to VTB Capital plc v Nutritek International Corp. [2013] 2 AC 337: ‘hearings concerning the issue of appropriate forum should not involve masses of documents, long witness statements, detailed analysis of the issues, and long argument. It is self-defeating if, in order to determine whether an action should proceed to trial in this jurisdiction, the parties prepare for and conduct a hearing which approaches the putative trial itself, in terms of effort, time and cost.’

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320 uta kohl Conditional Fee Arrangements, a dearth of relevant private lawyers, a hostile judiciary, and doubts about the enforcement and enforceability of any judgment, however unlikely, against the subsidiary, given its financial status and the general lack of political will to do so.97 Notably, despite the corporate insistence that these matters should not be taken into account except in the most exceptional circumstances and despite the Zambian Attorney General backing of the concern of comity, the Supreme Court went along with the judge’s finding that the lack of funding and of local legal expertise presented a real risk that the victims would not obtain substantial justice in Zambia.98 Thus it showed itself willing to squarely acknowledge the reality of the Zambian victims. That Chandler and Owusu were difficult precedents for Vedanta and KCM to overcome is reflected in the Court of Appeal decision: It is the combination of Owusu v Jackson on the one hand, and Chandler v Cape on the other, that underpinned the vast majority of Mr Hermer’s submissions [for the claimant]. In essence, although he was too polite to say so directly, his submission was that this court had no option but to refuse both these applications and to accept jurisdiction to deal with these proceedings as they are presently constituted.99

Yet the stakes were high for the Vedanta Group. A favourable ruling for the claimants would not just entail compensating the claimants, but also set a precedent for other like claimants to come forward100 and thereby create pressure on the Vedanta Group and like TNCs to raise their environmental, health and safety, and labour standards in the Global South—well above those required by local host law. In other words, it would fly in the face of the very design of the international trading and investment system that encourages forum-shopping. Thus the lawyers for Vedanta and KCM came up with a number of arguments to undermine the validity and application of the two precedents, albeit unsuccessfully this time. Their arguments were directed at reinforcing the organizational separateness of the two companies to undermine the substantive negligence claim against Vedanta, and at playing the territorial card by either trying to send the entire case to Zambia (for reasons mentioned earlier) or, at least, the action against Zambian KCM. This latter option was second best but still capable of weakening the claim against Vedanta, the real focus of the action. Figuratively speaking, the defendants’ argument sought to separate ‘mind’ (parent) from ‘body’ (subsidiary) or, to borrow from criminal law, mens rea from actus reus, and

97 Lungowe and Others v Vedanta Resources plc and Another (n. 89), paras. 169–98; Lungowe and Others v Vedanta Resources plc and Another (n. 91), paras. 113–35. 98 Vedanta Resources plc and Another v Lungowe and Others (n. 95), paras. 88–101. 99 Lungowe and Others v Vedanta Resources plc and Another (n. 91), para. 44. 100 See Okpabi and Others v Royal Dutch Shell plc and Another (n. 66), paras. 38–41, recounting the ripple effects of the Bodo litigation: The Bodo Community and Others v Shell Petroleum Development Company of Nigeria Ltd [2014] EWHC 1973 (TCC).

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territoriality and globalization 321 further reinforce that separation through state borders. All three courts were in agreement that if one were to focus only on KCM, the ‘factors point overwhelmingly to the conclusion that the fundamental focus of the litigation is Zambia’101—that is, the claimants were Zambian, the polluted land and waterways are in Zambia, and KCM is a Zambian company with an operating licence under Zambian law. Indeed, it is correct that the harmful act and harm itself occurred in Zambia, but the mastermind behind it was Vedanta, located in London. The very reason why Zambia re-privatized its copper industries and invited Western companies to take over its copper operations lies in that very fact. Technical know-how and capital is what Vedanta had to offer to turn the mine around, and that was not just a remote technical or financial reality, but one forcefully felt on the ground, as reflected in the words of a former KCM employee: [O]nce Vedanta took over KCM, working practices changed significantly. It became clear that cost cutting was the supreme objective. This compromised other areas of work . . . Almost all senior positions at KCM were given to people from Vedanta Group companies . . . when Vedanta took over most of the existing management and operational policies were discarded or became irrelevant.102

So despite the tangible effects of the defendants’ actions in Zambia, the argument that the focus of the litigation is Zambia is not so overwhelming once one considers the real culprit behind the wrongdoing. The decisions, whether strategic or operational, and the drivers leading to the harm suffered in Zambia were squarely located in England.103 Fault is a key element in any negligence claim and the gist of that fault rested with Vedanta, not KCM, in London. Whilst this was recognized by the courts for the purpose of showing that there was a genuine claim against Vedanta, they rejected it for deciding the ‘natural forum’ or ‘proper place’ against KCM, particularly where the parent had submitted to the foreign jurisdiction as well. But for the lack of ‘substantial justice’ in Zambia, the KCM limb of the action should have been dismissed in favour of Zambia. All three courts were in agreement that the action against Vedanta, the parent, was not just a ‘device’ in order to create a territorial ‘anchor’ in England for the claim against KCM to be also heard in England, but that there was a ‘real issue to be tried’ between the claimants and Vedanta.104 The claimants had to show, at this preliminary stage, that its 101 Lungowe and Others v Vedanta Resources plc and Another (n. 89), para. 153; Lungowe and Others v Vedanta Resources plc and Another (n. 91), paras. 105 et seq.; Vedanta Resources plc and Another v Lungowe and Others (n. 95), paras. 85–6. 102 Lungowe and Others v Vedanta Resources plc and Another (n. 91), para. 84. 103 Lungowe and Others v Vedanta Resources plc and Another (n. 89), para. 78: ‘there is some evidence that the claimants wish to pursue Vedanta because they are seen as the real architects of the environmental pollution in this part of Zambia. The argument is that, since it is Vedanta who are making millions of pounds out of the mine, it is Vedanta who should be called to account. I acknowledge that this argument has some force.’ 104 Ibid., para. 163. The relevant jurisdictional gateway for an out-of-forum defendant was the ‘necessary or proper party’ gateway in Practice Direction, Part 6B, 3.1(3). of the Civil Procedure Rules, which requires a local ‘anchor’ defendant, i.e. Vedanta.

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322 uta kohl action against Vedanta was ‘not bound to fail’, and this they did. Although, unlike in Chandler, Vedanta was a holding and not an operating company, the courts agreed— albeit with slightly varying emphasis—that Vedanta ‘assumption of responsibility’ was established because it had claimed oversight over KCM’s polluting activities and had such oversight in fact, as evidenced by its public statements about its governance frameworks with titles such as ‘Embedding Sustainability’ and public commitments in relation to KCM’s infrastructure, its inter-company management agreement with contractual promises for the provision of relevant training and technology, and its actual practices of controlling the activities of the subsidiary through its employees.105 In summary, in corporate groups the ‘mind’ (corporate know-how) and ‘body’ (corporate operations) are frequently centred in different companies. Company law, however, conveniently presumes that every company has its own mind,106 which insulates the controllers of economic activity from the consequences of their decisions.107 By the same token, whilst ‘follow-the-money’ is commonly used as a legal tool to disrupt illicit or harmful activity,108 corporate groups use the corporate veil, as created and upheld by the state and its courts, to counter this approach for affixing legal accountability. Still, through negligence law after Chandler, it has been possible to examine the real substantive links between companies and acknowledge their ‘proximity’—despite company law.109 In addition to the corporate layer, territoriality creates another buffer zone in cross-border claims which has, in the past, often closed the door to justice deliberations through devices such as forum non conveniens. That buffer zone was weakened by Owusu, as applied in Lungowe, and thus some of the revenue made by Vedanta at the expense of the Zambian community is now bound to be repatriated, through a settlement, to Zambia. Much like Owusu, Lungowe provides for the possibility of i nternational equity and is thereby fundamentally out of line with the design of the international trading system that encourages forum-shopping, as generally supported by the judicial tendency to protect that system by ring-fencing local corporate capital from foreign claims.

III.2.c. Nigerian Oil Zambia’s copper is Nigeria’s oil, and there are significant similarities in the central role the wealth of their natural resources has played in their colonial past and postcolonial present. Equally there are strong parallels in facts and legal arguments between Lungowe and the slightly later case of Okpabi and Others v Royal Dutch Shell plc and Another

105 Ibid., para. 199; Lungowe and Others v Vedanta Resources plc and Another (n. 91), paras. 84, 90; Vedanta Resources plc and Another v Lungowe and Others (n. 95), para. 61. 106 Under company law, every company has to have a board of directors and it is the duty of the directors to act in the best interest of the company. 107 The security of parent holding company is further consolidated by undercapitalizing ‘operational’ subsidiaries. 108 See e.g. in copyright infringement on the internet, money laundering, and financial fraud. 109 There are isolated examples of domestic company law that is less tolerant of corporate structuring as a means to minimize corporate irresponsibility; see e.g. Dine (n. 57).

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territoriality and globalization 323 (Rev 1) (2018)110 which concerned Shell’s oil operations and attendant pollution in Nigeria. The case presents on all levels an intensified version of Lungowe and thus sharply crystallized the unsettling economic implications of applying Owusu and Chandler to TNCs and their home states. However, for the time being that threat has been averted; the Court of Appeal, with a 2:1 majority, affirmed the lower court’s judgment and refused to allow the case to go ahead in England. The majority opined that the Nigerian claimants had no ‘real issue to be tried’ against Royal Dutch Shell plc (hereafter RDS or Shell plc), the English parent company, and was ‘bound to fail’ at trial. This threshold test has emerged as the de facto replacement for forum non conveniens in the corporate armoury, albeit one that requires a closer engagement with the substantive allegations against the corporate group. A hint of the strong aversion by the judiciary towards this and like claims shines through the Sir Geoffrey Vos’ concluding remarks: I might mention in closing that I thought throughout the hearing of the appeal that the court had a responsibility in a case of this kind not to strive to find a reason to allow jurisdiction. I became increasingly convinced as the argument progressed that the ultimate claim against RDS could simply never succeed. These thoughts may not be relevant to our decision, but they do endorse, I think, the correctness of the legal conclusion that we and the judge have ultimately reached.111

The Sir Geoffrey Vos did not elaborate on why the court had ‘the responsibility in a case of this kind’ not to allow for it to go ahead in England, nor what ‘a case of this kind’ is. However, it seems that there were strong extra-legal considerations with which the legal outcome was coincidentally consistent. What are ‘cases of this kind’ to trigger such judicial responsibility? If Lungowe involved a group claim by 1,826 Zambians, the joint cases in Okpabi concerned the claims of 42,335 Nigerians of the Ogale community and the Bille Kingdom in Nigeria, whose livelihoods and health were affected by the massive and long-standing pollution of wide areas of land and water across the Niger delta directly or indirectly caused by Shell’s oil pipelines. Like in Lungowe, the High Court acknowledged that ‘[t]here is no doubt that the claimants are all, or mostly all, very poor, and both the defendant companies are very wealthy. Oil is a lucrative business.’112 The defendants were Shell plc, the UK holding company of the Shell group, and Shell Petroleum Development Company of Nigeria Ltd (SPDC), a Nigerian exploration and production subsidiary within the group, that was part of a joint venture for the extraction of oil. Unlike in Lungowe, the Nigerian government had not just a stake but a majority stake through the Nigerian National Petroleum Corporation (NNPC) in the joint 110 Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) [2018] EWCA Civ. 191, affirming Okpabi and Others v Royal Dutch Shell plc and Another [2017] EWHC 89. 111 Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) (n. 111), para. 208 (emphasis added). Note in the case against Shell plc, it was not a matter of finding a reason to allow jurisdiction but rather to disallow what was effectively established by default against a local defendant. 112 Okpabi and Others v Royal Dutch Shell plc and Another (n. 66), para. 89.

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324 uta kohl venture.113 Although this means that it was deeply implicated in the w rongdoing and formally more so than Shell, this was barely acknowledged in the judgments, presumably on the basis that Shell’s real control over the joint venture in light of Nigeria’s eagerness to facilitate a favourable FDI environment can be taken for granted.114 If Vedanta had a complex group structure, Shell’s structure involved no less than 1,367 different companies, consisting of holding, operating and service companies located in 101 countries.115 Even its central decision-making Executive Committee had a dispersed membership from different Shell companies, with only a minority being executives of Shell plc and thus it was questioned whether its decisions could or could not be attributed to Shell plc.116 The core issue was, like in Lungowe, whether the English court should try the claims against the local parent and foreign subsidiary, based on the parent being an appropriate ‘anchor’ defendant. Thus again all hooked on the strength of the claim against Shell plc,117 but again at this preliminary stage the claimant only had to show that there was a ‘real issue to be tried.’118 The idea here is to weed out early completely unmeritorious and speculative claims; claims that are ‘fanciful’, have no ‘real prospect of success’,119 and are ‘bound to fail’ (e.g. where a crown immunity would lead to a dismissal of the claim).120 Given the early stage, the test necessarily provides a ‘relatively low threshold’.121 Still, the High Court and the majority of the Court of Appeal insisted that this low threshold had not been met, even though the three judges disagreed with each other on the admissibility of the evidence, its strength, or relevance in showing that Shell plc exercised central control over its Nigerian operations to satisfy the negligence ‘proximity’ requirement.122 Sales LJ in his dissent did not seem to consider the case as borderline at all: ‘there is a very real—and far more than a speculative—possibility that documents will emerge on 113 Ibid., para. 116. 114 Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) (n. 111), para. 197. 115 Okpabi and Others v Royal Dutch Shell plc and Another (n. 66), para. 81. 116 Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) (n. 112), para. 39: ‘In 2005, the Shell Group was reorganised and RDS came into existence. At this point the RDS Executive Committee (“ExCo”) was established. In addition to the CEO and CFO, it consists of the head of each of RDS's Global Businesses. Although there is a factual dispute about its functions and at [101] the Judge said that he did “not equate decisions taken by [ExCo] with decisions taken by RDS”, I would regard ExCo as carrying out material functions in relation to the business which are attributable to RDS for present purposes.’ 117 Okpabi and Others v Royal Dutch Shell plc and Another (n. 66), para. 18–19. 118 Practice Direction Part 6B, 3.1(3) of the Civil Procedure Rules: ‘A claim is made against a person (“the defendant”) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and (a) there is between the claimant and the defendant [here Shell plc plc] a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person [here SPDC] who is a necessary or proper party to that claim.’ 119 Carvill America Inc. v Camperdown UK Ltd [2005] EWCA Civ. 645; AK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others (Known as Altimo) [2011] 4 All ER 1027; Adrian Briggs, Private International Law in English Courts (Oxford University Press, 2014), 350. 120 The Brabo [1949] AC 326. 121 Cherney v Deripaska [2008] EWHC 1530; Lungowe and Others v Vedanta Resources plc and Another (n. 89), para. 98. 122 Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) (n. 111), paras. 186–9, 194.

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territoriality and globalization 325 disclosure which will provide substantial support for their case at trial’.123 After all, at this early stage, the claimants were in terms of witnesses largely dependent on those ‘who were willing to act in a certain sense as whistleblowers’.124 The case ultimately hinged on the level of control Shell plc had over the damaging activities of its Nigerian subsidiary. The narratives by the different judges about the level of control needed to satisfy the negligence ‘proximity’ test varied: the majority referred to ‘day-to-day’ control125 in contrast to Sales LJ’s references to ‘real’, ‘functional’, ‘practical’, and ‘material’ control and ‘proactive’ involvement.126 The majority’s insistence on such close control appears inconsistent with Chandler’s more substantive approach, according to which that it was ‘not necessary to show that the parent is in the practice of intervening in the health and safety policies of the subsidiary . . . [as long as there is] a practice of intervening in the trading operations of the subsidiary, for example production and funding issues’.127 On the facts and rather counterintuitively, Shell plc’s strong centralized control over the group, both actual and publicized—as evidenced by its global mandatory policies, standards and manuals on safety, security, environment and social issues, and on design and engineering practices and its oversight over their implementation—worked against the claimants’ case.128 The Supreme Court in Lungowe has now thrown this position into doubt.129 According to the majority, it was simply not enough to show that the Nigerian subsidiary had no autonomy as long as that lack did not go over and above that of other Shell subsidiaries or, for that matter, of subsidiaries more generally.130 The reason for this was that any other decision would have undermined the entire Shell artifice. Yet, it also means that TNCs can effectively avoid accountability based on a high level of control, as long as it is standardized over its operations. So whilst in the domestic case of Chandler engaging in nothing other than ‘normal’ parental practices did not preclude accountability, in the international setting it did: The detailed policies and practices . . . apply across the board to all RDS subsidiaries . . . without distinction. [I]t would be surprising if an international parent were to owe duties to those affected by the operations of all its subsidiaries and that there needs to be something more specific . . . [I]t would be surprising if a parent company were to go to the trouble of establishing a network of overseas subsidiaries with their own management structures if it intended itself to assume responsibility for the operations of each of those subsidiaries. The corporate structure itself tends to militate against the requisite proximity.131 123 Ibid., para. 171. 124 Ibid., para. 168. 125 Ibid., paras. 127, 200, 205. 126 Ibid., paras. 141, 142, 153, 162, 164, 172. 127 Chandler v Cape plc (n. 56), para. 80. 128 Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) (n. 111), paras. 89, 118–29, 140, but see Sales LJ para. 172 (vi). 129 Vedanta Resources plc and Another v Lungowe and Others (n. 95), paras. 52–3. 130 See e.g. Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) (n. 111), para. 205: ‘Any parent is concerned to ensure sound financial management, but the fact that spending decision required parental approval is not an indication that RDS controlled SPDC’s operations.’ 131 Ibid., paras. 195 et seq.

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326 uta kohl Indeed, in the global setting the corporate structure is created and used to allow for legal irresponsibility vis-à-vis overseas operations, and state law facilitates this marketplace of national normativities by upholding company law and disallowing international standard convergence through negligence law. For TNCs such marketplace of normativities facilitates cheap production or extraction of resources without suffering accountability for the harms caused by it. This system would be fundamentally reversed by upholding claims in a ‘case of this kind’, as it would allow for a backflow of wealth to the state of origin. Beneath the technical arguments and the institutionalized language, Okpabi exposes and challenges the profound inequities in the contemporary global marketplace and as such the interests at stake were enormous on both sides. According to the High Court, the parties occupied ‘firmly entrenched battle lines and . . . [were] bitterly opposed to one another’s evidence and arguments’.132 According to Sales LJ, there was ‘at least a possibility, given the size of the claim’ that Shell’s subsidiary in Nigeria would become insolvent.133 These were not ‘mere’ tort claims; these were claims that pitched Nigerian communities with no hope of support from their own government and with a longstanding history of exploitation by the West, first through governments and then TNCs, against a UK/Dutch corporate powerhouse.134 They were demanding compensation for the damage caused to their land, as judged by the standards considered appropriate and civilized by an English court. Given the scale of the actual case (i.e. 42,335 claimants), and the distant threat of many more like claimants making like claims, it is not surprising that Cardozo CJ’s classic warning in Ultramares Corp. v Touche (1931)135 of ‘liability in an indeterminate amount, for an indeterminate time, to an indeterminate class’ made it into the various judgments. Essentially it was used to show why Shell plc could or must not be considered ‘proximate’ to the claimants.136 Of course, just because there are many claimants does not mean that their number was indeterminate. As Sales LJ, rightly pointed out: ‘a claimant who owns land in the vicinity of the pipeline which is damaged by oil spilling from it . . . will be a member of a determinate class who suffers loss at a determinate time and in relation to a determinate amount, by reference to the impact on the value of his land’.137 Just because TNCs, like 132 Okpabi and Others v Royal Dutch Shell plc and Another (n. 66), para. 17. 133 Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) (n. 111), para. 150. 134 Goodacre (n. 58), 865, comments that possible restraints of corporate power vis-à-vis colonial populations did not come from English company law of the nineteenth century but was ‘rather associated with the advances in liberation from colonial ties in the second half of the twentieth century, only to be increasingly circumvented in step with the capitalist revanchism and resurgence of corporate power in its final decades.’ 135 Ultramares Corp. v Touche (1931) 174 NE 441, 444. 136 Okpabi and Others v Royal Dutch Shell plc and Another (n. 66), para. 114, Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) (n. 111), para. 128. 137 Okpabi and Others v Royal Dutch Shell plc and Another (Rev 1) (n. 111), para. 143, see also para. 172 (vi).

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territoriality and globalization 327 Shell, have the capacity to injure many in their pursuit of maximum profit and in fact do so, does not mean that they should be able to avoid accountability on the basis that they have injured many. Yet, this is exactly what the global legal framework—as a combination of permissive public international law, international trade and investment law facilitating competing national normativities, aid conditionality, and domestic corporate law—allows and encourages them to do. The majority in Okpabi felt obliged to honour this legal framework rather than upset it through opening the (territorial) gates to wronged foreign populations via permitting a negligence claim. In stark contrast, the Supreme Court and lower courts in Lungowe offer an unlikely spark of resistance to the status quo of global distributional injustice.

IV. Conclusion Public international law discourse on sovereignty, territoriality, and borders is worlds apart from discourses around various areas of domestic law with territorial implications. Examples of the latter are the presumption against extraterritoriality as a domestic rule of statutory interpretation, the procedural law of forum non conveniens or private international law more generally, or the economic ordering through company law. International law has higher ambitions and nobler intentions: At least part of the reason we value IL is that it offers to improve the lives of real indi viduals, billions of them—men, women, and children—in the world. Formalistically, we say that the subjects of IL are national sovereigns and that the people of the world are rather like chattels belonging to the sovereigns. But nobody wants to be heard saying that sort of thing nowadays, at least outside the towers of narrow scholasticism. The real purpose of IL and, in my view, of the ROL [rule of law] in the international realm is not the protection of sovereign states but the protection of the populations committed to their charge. People are not now regarded just as chattels of the sovereign powers, if they ever were.138

Despite these noble ambitions for the ‘protection of populations’, international law does not get its proverbial hands dirty by becoming involved in the domestic law quarrels between populations and global corporations. In the five lengthy judgments of the Lungowe and Okpabi litigation, the only brief implicit hints at international law appear in the High Court Okpabi judgment, which was overall the least sympathetic to the claims of the foreign populations. The judge’s references to the ‘sovereign’ state of Nigeria were

138 Jeremy Waldron, ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’, The European Journal of International Law 22 (2011): 315, 325.

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328 uta kohl designed to bolster Shell’s defence, rather than the claims of the victims.139 He cites with approval Shell’s anti-regulatory argument that: [a]llegations of the existence of a risk that justice will not be done in a foreign sovereign state have been advanced in the course of the last few months in . . . [various cases]. It is notable that these assertions are being advanced by the same firm of solicitors in relation to three very different sovereign states . . . [T]he fact that such allegations appear to be capable of being made with such apparent frequency and ease serves to underline the importance of Lord Collins's warnings as to the need both for extreme caution on the part of the Court when considering such allegations and of cogent evidence in relation to such allegations.140

The fact that Shell sought refuge behind the concept of sovereignty goes to the root of this chapter’s argument about the symbiotic relationship between territoriality and globalization or sovereign statehood and TNCs. Shell can feel fairly secure in its reliance on the sovereign state of Nigeria to protect its oil operation in Nigeria and on the sovereign state of the United Kingdom to protect it from the claims of wronged foreign populations (although since the Supreme Court judgment in Lungowe perhaps no longer quite as comfortably). Conversely for these wronged populations neither sovereign state provided any support. Despite the overt absence of public international law in transnational litigation, the main point of the case studies herein is to show how territoriality is deeply embedded in what may appear to be relatively insignificant procedural or technical domestic rules. These rules ‘implement’ the territorial state and, in the application of these rules, it is judges who create and recreate the territorial state in a be-fitting way. They are the border guards who determine payment obligations across borders and accountability or, as the case may be, unaccountability. As argued here, the tendency of the law in its application is to ring-fence local capital from foreign claims of entitlement which in turn is perfectly aligned with the wider international trade law framework. In some of the US cases on the presumption against extraterritoriality the location of the victim, within or without, is made the explicit touchstone of accountability. In contrast, no such open acknowledgement of discrimination is appropriate in civil tort litigation with its normal focus on the rights of the individual rather than on state interest. Yet, the discomfort of the judges with these foreign claims is palpable. Last but not least, the silence of international law in the above litigation bears testimony to the wilful blindness of international law to the private (economic) sphere which, as argued here, belongs to the third layer of legal meaning of authority vis-à-vis territorial sovereignty. The fact that Shell’s Nigerian oil operations pollute vast areas 139 Okpabi and Others v Royal Dutch Shell plc and Another (n. 66), paras. 34, 86, 121. Note too, in the appeal to the Supreme Court in Lungowe, the Attorney General of Zambia intervened on behalf of Vedanta and KZM with claims based on comity: Vedanta Resources plc and Another v Lungowe and Others (n. 95), para. 92. 140 Okpabi and Others v Royal Dutch Shell plc and Another (n. 66), para. 34 (emphasis added).

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territoriality and globalization 329 of Nigerian territory with significant implications for the local population is entirely banal within the framework of international law where TNCs as private actors are structurally under the ultimate control of the sovereign state and thereby outside the formal purview of international law critique. Still, if the real purpose of international law is indeed ‘the protection of the populations committed to the charge [of sovereign states]’, international lawyers must become their hands dirty and get involved with the transnational private sphere and private international law where the real battles between populations and corporations are fought141—with the latter, so far, generally being nicely cocooned by the territorial state. 141 Relevant (non-legal) principles are already present, see UN, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (New York and Geneva, 2011), as stressed in the joint intervention by the International Commission of Jurists and The Corporate Responsibility Coalition in the Supreme Court Lungowe appeal.

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Chapter 14

Pr i vate I n ter e sts a n d Pr i vate L aw R egu l ation i n Pu blic I n ter nationa l L aw J u r isdiction Alex Mills

I. The State-Centric and Public Law Focus of Jurisdiction

331

II. Traditional Jurisdictional Grounds: Territoriality, Nationality, Universality

332

III. Private Interests in Public Law Regulation

336

IV. Private Law Regulation

IV.1. Private Interests in Private Law Regulation IV.2. The Separation of Adjudicative and Prescriptive Jurisdiction IV.3. Additional Connecting Factors IV.4. Techniques to Manage Potentially Conflicting Regulation

V. Conclusions

337

340 344 349 351

354

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Private Interests and Private Law Regulation 331

I. The State-Centric and Public Law Focus of Jurisdiction This chapter responds to two related but distinct limitations of the dominant accounts of the modern law of jurisdiction. The first is that most discussion of jurisdiction is situated within the classical framework of international law under which states are the only actors. Jurisdiction is, in this conception, only about inter-state relations—a matter of defining the limits on state regulatory power, based principally on territorial or personal connecting factors (as outlined in Section II of this chapter). Within those limits, the exercise of that power is viewed as a matter of state discretion. Consequentially, the constraints on jurisdiction are enforced through inter-state processes, such as state protests against excesses of jurisdiction by other states. The law of jurisdiction does not therefore account for private actors and their interests. Jurisdiction is naturally focused on states and their regulatory powers, as it provides in turn for regulation of those powers (i.e. international regulation of national regulation). It is however striking that some of the ‘objects’ of that regulation—private parties—are missing from traditional accounts of the law, although they are now widely recognized as ‘subjects’ of international law, at least for certain purposes.1 This lacuna is discussed further in Sections III and IV of this chapter. The second is that questions of private law have been generally marginalized in modern discussions of the law of jurisdiction, as the focus has instead been on criminal and other public regulatory law. It has sometimes been questioned whether private law regulation is actually subject to public international law jurisdictional constraints at all.2 This is regrettable, because it means that public international lawyers have tended to underestimate the significance of private law regulation, and thus of the public i nternational law regulation of that regulation. Private law jurisdictional questions should receive greater attention for three reasons. First, they are undoubtedly significant not only for private actors themselves, but for the public interests which they engage. The regulation of contracts is, for example, not just about bilateral bargains, but also provides the basis for the global financial arrangements which underpin (and occasionally undermine) the functioning of the global economy. Claims in tort may, to give another example, not only regulate behaviour as an alternative to criminal law, but may also determine public resource allocation (where private compensation is not available, public support such as national healthcare may have to provide), and may further be relied on to enforce and protect public norms such as human rights. The second reason why private law regulation should receive greater attention is that it highlights some of the most important 1 See generally e.g. Kate Parlett, The Individual in the International Legal System (Cambridge University Press, 2011); Jean D’Aspremont (ed.), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Abingdon: Routledge, 2011). 2 See e.g. Michael Akehurst, ‘Jurisdiction in International Law’, British Yearbook of International Law 46 (1972–3): 145, 177, 182; for further examples see e.g. F. A. Mann, ‘The Doctrine of Jurisdiction in International Law’, in Studies in International Law (Oxford: Clarendon Press, 1973), 14.

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332 Alex Mills general issues of the law of jurisdiction, as discussed in Section IV of this chapter, including but not limited to the potential influence of private interests. The third reason is that private law regulation raises some distinctive jurisdictional issues, and potentially offers some distinctive solutions, also as discussed in Section IV. In a private law context, for example, the courts of one state may apply the substantive law of another state, thus separating the questions of adjudicative and prescriptive jurisdiction. In relation to both adjudicative and prescriptive jurisdiction, a proliferation of connecting factors has also been recognized in the private law context, as has a further range of techniques to m anage the potential for conflicting regulation.

II. Traditional Jurisdictional Grounds: Territoriality, Nationality, Universality The traditional law of jurisdiction needs relatively little introduction here.3 A clear preliminary distinction must be drawn between prescriptive jurisdiction (application of law)4 and enforcement jurisdiction (exercise of coercive power),5 the latter being strictly territorial in the absence of consent or a special permissive rule. Adjudicative jurisdiction, often posited as a third mode of exercise of regulatory power,6 involves elements of both prescription and enforcement, and will be an important focus of later analysis in this chapter. The law on prescriptive jurisdiction has traditionally focused on the identification of connecting factors between the regulating state and the object of its regulation, principally based on territoriality and nationality (a state may apply its law to any person or event in its territory, and may also apply its law extraterritorially to its nationals and potentially to events causing harm to its nationals). The existence of such limits reflects a recognition that sovereign states coexist in the international legal order and thus that an exercise of jurisdiction which relates to a person or event in another state’s territory requires particular justification. Universal jurisdiction has also increasingly been recognized as a feature of certain aspects of international law, focused primarily on regulation of international crimes, where states have collectively (through the formation of customary 3 See also e.g. Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84 (2014): 187; Christopher Staker, ‘Jurisdiction’, in Malcolm D. Evans (ed.), International Law, 4th edn (Oxford University Press, 2014); F. A. Mann, ‘The Doctrine of Jurisdiction Revisited after Twenty Years’, Recueil des Cours 186 (1984): 19; Mann (n. 2). 4 This may be exercised by any law-making body, which may include the legislature, judiciary, or executive. See e.g. Restatement (Fourth) of Foreign Relations Law, § 401 (Comment). 5 See e.g. ibid., § 432. 6 See e.g. ibid., §§ 421–3. The Restatement (Fourth) of Foreign Relations Law takes the (controversial) new position that ‘With the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate’ (Part IV, Chapter 2, Introductory Note). This is discussed further in Section IV of this chapter.

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Private Interests and Private Law Regulation 333 international law or through treaty practice) accepted that the interests of ending impunity outweigh the need for traditional regulatory constraints.7 States generally comply with these limits in one of two ways. First, through express limits adopted as part of legislation—a criminal statute may state, for example, that it is an offence to commit murder in the territory, or for a national of the state to commit murder anywhere in the world.8 Second, where statutory presumptions are relied on to equivalent effect, such as the presumption against extraterritoriality9 or the more expansive presumption against extra-jurisdictionality10 (which may encompass e xtraterritorial regulation where permitted under international law rules of jurisdiction).11 An exercise of jurisdiction beyond recognized limits would constitute an internationally wrongful act. Within the boundaries of these limits or justifications, both prescriptive and enforcement jurisdiction have been approached traditionally as a question of state discretionary power, reflecting a state’s sovereign control over the exercise of its regulatory authority. It has, however, also been recognized as part of international law that states must comply with a minimum standard of treatment in relation to foreign nationals in their territory.12 This provides a constraint not only on how jurisdiction may be exercised, but also on whether jurisdiction may be exercised. It may, for example, be a denial of justice if the perpetrator of a crime against a foreign national in a state’s territory is not arrested, or goes unpunished, or (arguably) if fundamental harmful acts against a foreign national are not criminalized at all.13 Thus in at least some circumstances a failure to exercise enforcement, adjudicative or prescriptive jurisdiction may also constitute an internationally wrongful act. An example of the various elements of this traditional framework of jurisdiction is represented diagrammatically in Figure 14.1. It is a feature of this framework that it readily accepts some possibility of overlapping and conflicting exercises of prescriptive jurisdiction. This is possible even within the domain of territorial jurisdiction, as a wrongful act committed in one territory which causes direct harm in another territory may give rise to territorial jurisdiction in each state. The possibility of conflicting prescriptive jurisdiction is further multiplied by 7 See generally e.g. Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, Journal of International Criminal Justice 2 (2004): 735; Restatement (Fourth) of Foreign Relations Law, § 413. 8 See e.g. Offences Against the Person Act 1861 (UK), s. 9. 9 See e.g. Morrison v National Australia Bank, 561 US 247 (2010); Restatement (Fourth) of Foreign Relations Law, § 404. 10 In this context, meaning a presumption that a law does not exceed international law’s jurisdictional limitations. See e.g. John H. Knox, ‘A Presumption against Extrajurisdictionality’, American Journal of International Law 104 (2010): 351; Restatement (Fourth) of Foreign Relations Law, § 406. 11 See e.g. Alexander Murray, Esq. v Schooner Charming Betsy, 6 US 64 (1804); The Appollon, 22 US 362, 370 (1824) (‘however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction to places and persons, upon whom the legislature has authority and jurisdiction’). 12 See generally e.g. Martins Paparinskis, The International Minimum Standard and Fair and Equitable Treatment (Oxford University Press, 2013). 13 See e.g. Jan Paulsson, Denial of Justice in International Law (Cambridge University Press, 2005); Francesco Francioni, ‘Access to Justice, Denial of Justice and International Investment Law’, European Journal of International Law 20 (2009): 729.

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334 Alex Mills

France

Limits of public international law jurisdiction; Diplomatic protection?

Nationality

UK

Denial of justice; Diplomatic protection?

Adjudicative and enforcement jurisdiction

Criminal (French)

Crime

Germany

Nationality

Victim (German)

• French criminal injures German victim • UK courts prosecute • If UK courts have no recognised basis of jurisdiction, breach of international law in respect of France • If UK courts have jurisdiction and refuse to exercise, may be breach of international law in respect of Germany

FIGURE 14.1 Traditional framework of jurisdiction

the existence of nationality-based jurisdiction, which may alternatively be based on the nationality of the defendant (active personality) or, slightly more controversially, the victim (passive personality). An even further possibility for overlapping regulation arises in relation to universal jurisdiction, although the possibility of conflicting regulation is diminished by the fact that this only arises in respect of internationally recognized crimes. Such jurisdictional overlaps are limited principally (but often ineffectively) by the rule that territoriality is the exclusive basis of enforcement jurisdiction. The state which controls the exercise of power over the person or property subject to exercises of prescriptive jurisdiction may thus ultimately be in the primary position to give effect to its criminal law. For legal or natural persons with property in more than one territory, however, the possibility of enforcement against their assets may render them effectively subject to the prescriptive jurisdiction of multiple states. A ‘rule of reasonableness’ has also been proposed (e.g. in the US Restatement (Third) of Foreign Relations Law,14 and in a more developed form in the work of Cedric Ryngaert15) as a limitation on the exercise of prescriptive jurisdiction, requiring that it take into consideration the relative strengths of the connections which the issue has with different states. This is, however, not widely accepted to form part of current international law on jurisdiction, and in the Restatement (Fourth) of Foreign Relations Law has been downgraded to ‘a matter of prescriptive comity’.16 14 Restatement (Third) of Foreign Relations Law, § 403. 15 Cedric Ryngaert, Jurisdiction in International Law, 2nd edn (Oxford University Press, 2015). 16 Restatement (Fourth) of Foreign Relations Law, § 405.

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Private Interests and Private Law Regulation 335 The limited recognized grounds of jurisdiction have traditionally served as a s ignificant constraint on state regulation. However, two developments suggest that the existence of only limited possibilities for regulation beyond a state’s own territory may be failing to fulfil this function. The first is the rise in what may be called ‘extraterritorial projection’, where territorial regulation is relied on to project the effect of regulation extraterritorially.17 For example, a state may condition entry of goods into its territory on the state of origin’s compliance with human rights law, environmental regulation, or labour standards. The regulation is territorial, but its effect is not—and thus public i nternational law does not constrain a state from leveraging its economic influence to regulate matters which do not occur on its territory or involve its nationals. The primary concern here is perhaps not so much the increasing prospect of conflicting regulation, but the potential for international jurisdictional rules to be complicit in economic coercion—however well-intentioned much of it may be. The second development is the rise in cross-border activity which may engage numerous territorial connections. This includes a wide v ariety of commercial and non-commercial activity, but perhaps the most prominent example is conduct on the internet.18 Despite initial idealistic conceptions of the internet as a ‘free zone’ beyond state regulatory control, it is instead becoming a site of over-regulation, as even territorially targeted state laws impacting on online activity will frequently have global implications. In some cases, this may lead to conflicting regulatory policies, as, for example, the free-speech rights favoured by one state are diminished by the limitations on free speech imposed by another.19 In unusual cases, it may even lead to directly contradictory regulation. The US Supreme Court was, for example, recently faced with deciding whether a search warrant issued in New York against Microsoft should extend to emails held on servers in Ireland.20 The case was rendered moot by the US enactment of the Clarifying Lawful Overseas Use of Data Act (CLOUD Act),21 to provide expressly that the relevant orders may have extraterritorial effect. Microsoft and other similar cloud service providers are thus potentially in the unenviable position of having to choose between breaching US criminal law or EU data protection law.22

17 See further e.g. Alex Mills, ‘Private International Law and EU External Relations: Think Local Act Global, or Think Global Act Local?’, International and Comparative Law Quarterly 65 (2016): 541; Joanne Scott, ‘Extraterritoriality and Territorial Extension in EU Law’, American Journal of Comparative Law 62 (2014): 87; Joanne Scott, ‘The New EU “Extraterritoriality” ’, Common Market Law Review 51 (2014): 1343. 18 See generally e.g. Dan Jerker B. Svantesson, Solving the Internet Jurisdiction Puzzle (Oxford University Press, 2017). 19 See e.g. Alex Mills, ‘The Law Applicable to Cross-Border Defamation on Social Media: Whose Law Governs Free Speech in “Facebookistan”?’, Journal of Media Law 7 (2015): 1, 19. 20 United States v Microsoft Corp., 584 US (2018). 21 Pub. L. 115–141, amending the Stored Communications Act, 18 USC 2701. 22 See further e.g. the various amicus briefs available at http://www.scotusblog.com/case-files/cases/ united-states-v-microsoft-corp/.

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336 Alex Mills Distinct questions may also be raised about the continuing utility of nationality as a basis for the extraterritorial exercise of jurisdiction. It raises legitimacy concerns, as a national of one state who has long lived in another state may not be able to participate in the law-making processes to which they are subject (e.g. they may be unable to vote in the elections of their state of nationality).23 It also presents interpretive problems for corporate entities whose place of ‘legal foundation’ may not reflect the reality of their activities, although the complementary exercise of territorial jurisdiction may present at least a partial response to these concerns. These issues are discussed further below.

III. Private Interests in Public Law Regulation As noted herein, a defining feature of modern international law is that it is no longer just the law which applies between states, but also the law of individual rights which may be opposable to states, including but not limited to human rights. States are under obligations not just to respect rights, but to protect them and to provide for their fulfilment through domestic law.24 These developments have a direct impact on questions of jurisdiction, particularly (but not only) in an adjudicative context in which the exercise of prescriptive jurisdiction is actualized through an exercise of enforcement jurisdiction. For an accused perpetrator of a crime, for example, the exercise of jurisdiction may be affected by rights of due process25 and the principle of legality—including the requirement that it be readily ascertainable in advance which law will govern conduct, which may reinforce jurisdictional limits.26 For a victim of crime, the exercise of adjudicative and enforcement jurisdiction by a state over the accused perpetrator may be mandated by rights of access to justice.27 More generally, the obligation on states to protect human rights requires a broad exercise of prescriptive jurisdiction. A state could only be compliant with its obligations to protect human rights through the use of criminal law (and possibly, as discussed later, civil law) to prohibit and punish violations of human rights, particularly given the requirements of the principle of legality.

23 See e.g. discussion in Shindler v Chancellor of the Duchy of Lancaster [2016] EWCA Civ. 469, in relation to UK non-resident voting rules and the Brexit referendum. 24 See e.g. http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx; http://www.un.org/ en/sections/universal-declaration/foundation-international-human-rights-law/index.html (‘Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. The domestic legal system, therefore, provides the principal legal protection of human rights guaranteed under international law.’). 25 See e.g. International Covenant on Civil and Political Rights, Art. 14. 26 See further analysis in Kimberley N. Trapp, Ch. 15 of this Handbook. 27 See generally e.g. Francesco Francioni, Access to Justice as a Human Right (Oxford University Press, 2007); Golder v United Kingdom (4451/70) [1975] 1 EHRR 524; see further discussion in Mills (n. 3).

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Private Interests and Private Law Regulation 337

France

Limits of public international law jurisdiction; Diplomatic protection?

Nationality

UK

Due process

Denial of justice; Diplomatic protection?

Germany

Access to justice Adjudicative and enforcement jurisdiction

Criminal (French)

Crime

Nationality

Victim (German)

• French criminal injures German victim • UK courts prosecute • UK may owe obligations of due process to criminal and access to justice to victim which restrict or require the exercise of jurisdiction

FIGURE 14.2 Jurisdictional framework—impact of private actors

The key point for present purposes is that these rights, and the recognition of individual agency in international law, complicate the dynamics of an exercise of jurisdiction. Instead of jurisdiction being purely a matter of state discretion, with the sole interests under consideration being those of other states, the exercise of jurisdiction is affected by the interests of a variety of private actors, both in terms of compelling jurisdiction and imposing additional jurisdictional constraints. An illustrative example of this dynamic is represented diagrammatically in Figure 14.2. This dynamic has a particularly significant impact on the exercise of jurisdiction in relation to private law matters, as discussed in the following section.

IV. Private Law Regulation A further problematic feature of most modern accounts of the law of jurisdiction in international law is the exclusion or at least the marginalization of private law regulation. This is problematic for a number of reasons. As discussed earlier, it is normatively undesirable because private law rules may be important forms of state regulation. The marginalization of these rules has left public international lawyers relatively blind to the significance of private law, although this has undoubtedly changed in recent years.28 28 See further generally e.g. Duncan French, Kasey McCall-Smith, and Veronica Ruiz Abou-Nigm (eds.), Linkages and Boundaries in Private and Public International Law (Oxford: Hart, 2018).

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338 Alex Mills The exclusion of matters of private law from public international regulatory constraints would also be inconsistent with state practice. Although states intervene in particular private law disputes relatively infrequently, this does not establish a lack of state interest in private law regulation in general. Such an interest is indeed demonstrated by state interventions in some important private law cases. Perhaps the most significant recent example is the well-known Kiobel v Royal Dutch Petroleum litigation in the US Supreme Court, relating to the interpretation of the Alien Tort Claims Act.29 Although the proceedings were purely between private actors, several state (or quasi-state) actors intervened, including the European Commission (on behalf of the European Union) and (jointly) the United Kingdom and the Netherlands.30 While these submissions diverged on certain points (as noted later), they each adopted as a starting premise that the exercise of adjudicative jurisdiction by states in matters of private law is regulated by the same general constraints which apply in matters of public law—the need, absent exceptional circumstances, for a recognized connection (such as a territorial or nationality-based link) to justify the exercise of adjudicative jurisdiction. It is a matter of great regret that the recent Restatement (Fourth) of Foreign Relations Law in the United States appears to has departed from the approach previously recognized under US law, and suggests that customary international law does not constrain the exercise of adjudicative jurisdiction at all.31 In the context of private law regulation, states generally do not give effect to these limitations through reliance on express statutory provisions as to scope or through statutory presumptions (which, as noted earlier, they typically do in the context of public law regulation). Instead, rules of private law are generally themselves silent on their scope of application, which is instead determined through application of rules of private international law, as discussed later in this chapter. A further reason why private law matters should not be excluded from the scope of public international law jurisdictional regulation is that this would be historically anomalous. Private law regulation has in fact played an important role in the historical development of the international law of jurisdiction, including through the close historical connection between public and private international law. Both public and private international law developed over the course of centuries as part of a single ‘law of 29 Kiobel v Royal Dutch Petroleum Co., 133 S. Ct 1659 (2013). 30 All amicus curiae briefs are available at http://www.scotusblog.com/case-files/cases/kiobel-v-royaldutch-petroleum/. 31 See e.g. the recent discussion in http://opiniojuris.org/2018/02/26/u-s-v-microsoft-microsoftireland-implications-for-international-lawmaking/ and http://opiniojuris.org/2018/03/08/the-customary-international-law-of-jurisdiction-in-the-restatement-fourth-of-foreign-relations-law/. See further Austen Parrish, ‘Judicial Jurisdiction: The Transnational Difference’, Virginia Journal of International Law 59 (forthcoming, 2019). The Restatement approach appears to be premised on the outdated assumption that the exercise of jurisdiction is permitted unless a specific prohibition can be identified—see Mills (n. 3). It might instead have been asked: is there state practice and opinio juris to support the claim that states can exercise adjudicative jurisdiction in the absence of any connection to the dispute? This is evidently not the case—as discussed later, states do not assert such jurisdiction (setting aside claims of universal civil jurisdiction arising from international crimes), although the range of connecting factors on which states rely in the context of private law disputes is broader than those commonly recognized in criminal law.

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Private Interests and Private Law Regulation 339 nations’, reflecting the key principles of international social organization based on personal/tribal loyalties (reflected in the role of nationality in modern law) as well as territorial state power.32 In the fifteenth century, for example, the ‘statutists’33 had already articulated what was for them an exhaustive account of the possible forms of exercise of state regulatory power—operating territorially over all persons regardless of nationality, or operating personally over all nationals regardless of their location. These coexisting territorial and personal conceptions of state regulatory authority formed the basis of modern (public and private) international law34 through the lineage of Ulrik Huber in the seventeenth century and his powerful influence on Joseph Story in the nineteenth century.35 Although the modern international law of jurisdiction has focused on public law, this was never intended to exclude private law regulation from jurisdictional constraints.36 One possible explanation for the marginalization of private law issues in the modern law on jurisdiction is that it is a consequence of the focus of the highly influential37 1935 Harvard Draft Convention (itself influenced by preparatory work carried out by the League of Nations Codification Committee) exclusively on criminal law.38 However, the justification for this decision was not any uncertainty as to the i nternational regulation of private law matters, but rather the parallel consideration of aspects of private international law in both the League of Nations Codification Committee and other fora.39

32 See further e.g. Martti Koskenniemi, ‘Expanding Histories of International Law’, American Journal of Legal History 56 (2016): 104; Ryngaert (n. 15); Alex Mills, The Confluence of Public and Private International Law (Cambridge University Press, 2009), ch. 2; Alex Mills, ‘The Private History of International Law’, International and Comparative Law Quarterly 55 (2006): 1. 33 A group of legal scholars who offered an early response to the question of what jurisdictional effect a statute should have—generally, they classified statutes into two categories, the first being territorial in application, and the second being personal and thus attaching to a citizen regardless of territorial location. See further discussion in Mills, Confluence (n. 32) and Mills, ‘The Private History of International Law’ (n. 32). 34 See e.g. Georg Friedrich von Martens, The Law of Nations, 4th edn (London: William Cobbett, 1829), book III, ch. III (examining both public and private international law questions). 35 See e.g. Joseph Story, Commentary on the Conflict of Laws (Boston: Hilliard, Gray and Co., 1834), s. 7. It is unclear whether Huber adopted a purely territorialist approach to state regulation—it might be argued that he recognized both territorial and nationality based prescriptive jurisdiction, but only territorial enforcement jurisdiction, consistent with modern law. 36 See e.g. Joseph H. Beale, ‘The Jurisdiction of a Sovereign State’, Harvard Law Review 36 (1923): 241. 37 For criticism of this influence see Dan Jerker B. Svantesson, ‘A New Jurisprudential Framework for Jurisdiction: Beyond the Harvard Draft’, American Journal of International Law 109 Unbound (2015): 69. 38 The full title of the draft is the Draft Convention on Jurisdiction with Respect to Crime: see American Journal of International Law 29 Supp. 1 (1935): 439. The Convention drew on the work of the League of Nations Committee of Experts for the Progressive Codification of International Law, which examined both public and private international law topics, but did so separately. For the work of the Committee on jurisdiction, see League of Nations Committee of Experts for the Progressive Codification of International Law, ‘Criminal Competence of States in Respect of Offences Committed Outside their Territory’, American Journal of International Law 20 Supp. (1926): 252. 39 See e.g. ‘First Session of the Committee of Experts for the Progressive Codification of International Law’, American Journal of International Law 20 Supp. (1926): 12.

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340 Alex Mills

IV.1. Private Interests in Private Law Regulation The exercise of jurisdiction in the context of private law is affected by many of the same considerations which complicate the modern law of jurisdiction in public law, as discussed earlier. For example, the exercise of adjudicative jurisdiction may be restricted by considerations of (respondent) rights of due process. Although these are most commonly considered to affect the procedures through which jurisdiction is exercised (such as requiring sufficient notice to be given a defendant)40 rather than the exercise of jurisdiction itself, US courts have long conceptualized US constitutional due process constraints as affecting whether adjudicative jurisdiction can be exercised by US states in civil matters at all,41 and this reasoning could be applied by analogy at the international level based on equivalent human rights constraints. Conversely, the exercise of adjudicative jurisdiction may be positively affected by (claimant) rights of access to justice and the doctrine of denial of justice as part of the minimum standard of treatment under international law. The establishment of private law rights, and the exercise of civil jurisdiction which actualizes these rights, may be as much a matter of obligation in i nternational law as equivalent public law rights and their enforcement. As a consequence, the exercise of public international law jurisdiction in the context of private law may equally be a matter of obligation rather than discretion for states. This might evidently also have an impact on national law doctrines, particularly those relating to adjudicative jurisdiction which (i) present the exercise of jurisdiction as a matter of discretion, or (ii) provide for grounds on which jurisdiction might not be recognized or exercised (such as immunities or the act of state doctrine). In relation to the first issue, the English courts have long taken into account the rights of access to justice of a claimant as part of the discretionary forum conveniens and forum non conveniens tests under the expansively defined common law rules on civil jurisdiction. Permission will be given to commence English proceedings (or a stay of English proceedings will be refused), even if the case has relatively minimal connections with England, where the claimant would be denied justice if denied access to the courts.42 English domestic law has thus evolved consistently with the international developments discussed earlier, and recognizes that it may be necessary to exercise jurisdiction to give effect to the rights of claimants. A recent illustration of the second issue is provided by the Benkharbouche litigation in the UK Supreme Court, which arose from employment claims relating to the Embassies 40 See e.g. Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351/1 (‘Brussels I Regulation Recast’), Art. 45(1)(b). 41 Although this influence declined over the course of the twentieth century: see e.g. Alex Mills, ‘Federalism in the European Union and the United States: Subsidiarity, Private Law and the Conflict of Laws’, University of Pennsylvania Journal of International Law 32 (2010): 369, 442 et seq. See further Restatement (Fourth) of Foreign Relations Law, § 422. 42 See generally e.g. The Spiliada [1987] AC 460; The Vishva Ajay [1989] 2 Lloyd’s Rep. 558; Connelly v RTZ [1998] AC 854; Vedanta v Lungowe [2019] UKSC 20.

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Private Interests and Private Law Regulation 341 of Sudan and Libya in London.43 The question in this case was whether the UK courts could grant immunity to the defendants, giving effect to the terms of the State Immunity Act 1978, in a claim brought to vindicate rights under EU and UK employment law. The Supreme Court held that the claimants’ rights of access to justice under the European Convention on Human Rights (ECHR) required that immunity be granted only to the extent required under international law, and (in respect of the claims based on EU law) set aside the State Immunity Act to the extent that it provided for greater immunity than international law mandates.44 An evident premise behind this decision is that, under the influence of human rights law, it was the non-exercise of jurisdiction which required justification, rather than the exercise of jurisdiction being a matter of discretion (as in the traditional account of jurisdiction). The Court specifically held that despite the structure of the State Immunity Act (which presumes immunity unless an exception applies), under customary international law the position is that no immunity exists except where there is a rule requiring it. In civil proceedings brought pursuant to employment law, falling outside the scope of state sovereign activity, no such immunity applied, and the rights of access to justice of the claimants were held to compel the exercise of state adjudicative jurisdiction. Thus far the case law on these issues has focused on the question of whether adjudicative jurisdiction which is provided for under national law should be exercised, where that jurisdiction is a matter of discretion or where potential immunities might prevent its exercise. A major issue which remains untested is whether rights of access to justice under international law might in some circumstances require the expansion of existing grounds of adjudicative jurisdiction. Although the question is somewhat hypothetical, there seems little cause to doubt that a legal system which did not provide for widely recognized territorial grounds of jurisdiction (such as jurisdiction over torts committed in its territory) would not be considered to meet its human rights obligations of access to justice for claimants, at least under the broadly constructed ECHR conception of those obligations. There are, however, a wide variety of approaches to civil jurisdiction under national legal systems, and it is very difficult to identify which jurisdictional grounds might be considered matters of international obligation. The continuing work of the Hague Conference on Private International Law in preparing a treaty on recognition and enforcement of civil judgments, which also involves articulating internationally standardized grounds of civil jurisdiction, has the potential to be a highly influential source in this respect.45 A further unresolved question is whether rights of access to justice for claimants might require the exercise of jurisdiction in the absence of recognized territorial or 43 Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62. 44 The power to set aside the Act derived from the status of the Charter of Fundamental Rights as EU Treaty law. The claim also concerned rights which were not based on EU law—for those, the court made a declaration that the State Immunity Act 1978 was incompatible with human rights, pursuant to the Human Rights Act 1998. 45 See https://www.hcch.net/en/projects/legislative-projects/judgments.

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342 Alex Mills ersonal connections in some circumstances. This question is frequently framed in two p distinct forms, which are very closely related but may give rise to distinct consequences.46 The first is the idea of a ‘forum of necessity’ rule of jurisdiction, under which a court may hear a claim despite the absence of a traditional jurisdictional justification where no other forum is available to the claimant, potentially subject to conditions which establish that the forum has some interest in the dispute (such as a connection with the claimant). Such a rule exists, for example, as part of the law of a number of EU Member States.47 The second is the concept of ‘universal civil jurisdiction’, which equally recognizes that adjudicative jurisdiction may be exercised, at least in certain circumstances, in the absence of traditional jurisdictional justifications,48 although usually subject to the exhaustion of potential remedies in courts with traditional jurisdictional links. One difference between these two approaches is that those advocating a forum-of-necessity rule tend to view it as a general rule of jurisdiction, giving effect to claimant rights of access to justice which apply regardless of the substantive nature of their claim, while those advocating a rule of universal civil jurisdiction tend to view it as justified by the nature of the substantive proceedings, and thus limited to civil claims arising out of the most serious international wrongs, such as torture. It may, for example, be argued that such claims should not be subject to the usual jurisdictional constraints because a state is not exercising its own prescriptive jurisdiction but rather acting on behalf of internationally agreed norms.49 The amicus brief of the European Commission in the Kiobel case gave its support to a rule of universal civil jurisdiction, ‘but only when the conduct at issue could also give rise to universal criminal jurisdiction’.50 It should be noted that this received much more limited support in the joint brief of the United Kingdom and the Netherlands, despite the fact that the Netherlands actually has a forum-of-necessity law under which jurisdiction may be exercised in the absence of traditional connections (as the brief acknowledged).51 States Parties to the Convention against Torture are subject to an obligation to provide civil remedies to victims of torture, which would necessitate the exercise of prescriptive jurisdiction and the provision of a basis of adjudicative jurisdiction which can be invoked by such victims.52 The Committee against Torture has consistently but controversially 46 See further Mills (n. 3), 225. 47 See ibid., 222 et seq.; Arnaud Nuyts, ‘Study on Residual Jurisdiction: General Report’ (2007), 64 et seq., http://ec.europa.eu/civiljustice/news/docs/study_residual_jurisdiction_en.pdf. 48 See e.g. Donald Francis Donovan and Anthea Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’, American Journal of International Law 100 (2006): 142. 49 See e.g. the amicus brief of Argentina in the Kiobel litigation, http://www.americanbar.org/content/ dam/aba/publications/supreme_court_preview/briefs/10-1491_petitioneramcugovtofargentinerepublic.pdf. 50 See https://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/101491_neither_amcu_eu.authcheckdam.pdf, 4. 51 Dutch Code of Civil Procedure, Art. 9. 52 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Art. 14(1).

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Private Interests and Private Law Regulation 343 expressed the view that this obligation applies regardless of where the torture is committed, at least in the absence of compensation from the courts of the territorial state,53 which would appear to necessitate a basis of universal civil jurisdiction (in parallel with the uncontroversial basis of universal criminal jurisdiction in the Convention). The United Kingdom54 and the United States55 have long resisted the idea that their courts are under any obligation to ensure compensation for victims of torture committed outside their territory. The United States has, however, given its courts the power to do so (subject to exhaustion of local remedies) through the Torture Prevention Act 1991,56 apparently taking the view that universal civil jurisdiction may be exercised as a matter of right rather than obligation. Practice on these points however is limited, controversial, and presently inconclusive in determining whether international law requires or even permits the exercise of universal civil jurisdiction, in the context of torture or otherwise.57 The collective international interest in ending criminal impunity, which has been recognized to establish universal criminal jurisdiction, would not necessarily justify an equivalent collective interest in ensuring civil redress to victims of international crimes. It is open to argument whether an equivalent collective interest exists in ensuring that those would conduct or authorize torture face the civil consequences of their wrongdoing. To this point, the issues raised by exercises of civil jurisdiction closely parallel those raised by exercises of criminal jurisdiction or other forms of public law power. Although in the exercise of criminal jurisdiction the victim is not a party to the proceedings, their rights of access to justice may nevertheless affect the exercise of jurisdiction in the same way as the rights of a claimant in civil proceedings. The analysis of an exercise of jurisdiction is, however, more complicated in the private law context than in the public law context, for three main reasons examined in turn below: (1) the separation of adjudicative jurisdiction and prescriptive jurisdiction; (2) the use in practice of additional connecting factors which go beyond or hybridize personal and territorial connections; and (3) the development of a range of distinctive techniques to limit overlapping exercises of jurisdiction.

53 See e.g. General Comment No. 3 of the Committee against Torture, 19 November 2012, UN Doc. CAT/C/GC/3. In support of this view see e.g. Christopher Keith Hall, ‘The Duty of States Parties to the Convention against Torture to Provide Procedures Permitting Victims to Recover Reparations for Torture Committed Abroad’, European Journal of International Law 18 (2007): 921. 54 See e.g. the recent discussion in Belhaj v Straw [2017] UKSC 3; Jones v Saudi Arabia [2006] UKHL 26. 55 The US made a declaration at the time of ratification of the Convention, providing (inter alia) ‘That it is the understanding of the United States that article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party.’ 56 28 USC, § 1350. 57 An obligation to exercise universal civil jurisdiction in the context of torture was, however, recently rejected in a Grand Chamber decision of the European Court of Human Rights, Nait-Liman v Switzerland, App. No. 51357/07 (15 March 2018), although with a note that ‘given the dynamic nature of this area, the Court does not rule out the possibility of developments in the future’ (at [220]).

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344 Alex Mills

IV.2. The Separation of Adjudicative and Prescriptive Jurisdiction Absent some highly unusual arrangement, it has long been accepted (although under occasional academic protest) that in matters of public law a national court always applies its own law.58 To put this another way, in criminal and other public law cases when a court exercises adjudicative jurisdiction it is also actualizing the exercise of prescriptive jurisdiction by the forum state, giving particular effect to its general prescriptions. The presence of the defendant in the territory will usually be a precondition for this, which makes it possible for the state to also exercise enforcement jurisdiction over the defendant before, during, or after the proceedings.59 Unusually, a trial may be held in absentia which will involve purely the application of prescriptive rather than enforcement jurisdiction, generally with the aim of obtaining the extradition of the defendant (after which a rehearing may be required to ensure compatibility with the rights of the defendant).60 In matters of private law, by contrast, there is a possible split between the question of adjudicative jurisdiction and prescriptive jurisdiction, because a court will not necessarily apply its own law. This added complexity in the exercise of civil jurisdiction is represented diagrammatically in Figure 14.3. In private law disputes, issues of ‘jurisdiction’ (in the international law sense) must therefore involve a careful distinction between the exercise of judicial process (generally referred to, somewhat unhelpfully, as the question of ‘jurisdiction’) and the applicable law which is actualized through that process (generally referred to as the question of ‘choice of law’). In the context of private law claims, a court may take ‘jurisdiction’ over the defendant based on a variety of connections. In the common law, for example, these include the mere presence of the defendant in the territory at the time of commencement of proceedings,61 as well as a wide range of grounds of jurisdiction over non-present defendants, such as where a tort is committed in the territory or a contract is breached in the territory.62 In some cases, states assert jurisdiction on grounds which are considered by other states as problematic—this is usually described as an ‘exorbitant’ jurisdiction, which reflects questions about whether the exercise of jurisdiction is contrary to underlying principles of international law. Commonly cited examples include the practice of the English courts exercising jurisdiction based on the mere transient presence of the defendant in the territory,63 the fact that a contract under dispute was entered into in 58 See e.g. William Dodge, ‘Breaking the Public Law Taboo’, Harvard International Law Journal 43 (2002): 161; The United States Securities and Exchange Commission v Manterfield [2009] EWCA Civ. 27; Huntington v Attrill [1893] AC 150. 59 See e.g. Restatement (Fourth) of Foreign Relations Law, § 427. 60 See e.g. Colozza v Italy [1985] ECHR 1. 61 See e.g. Adams v Cape Industries [1990] 2 WLR 657. 62 See e.g. Civil Procedure Rules (England and Wales), Practice Direction 6B. 63 See e.g. Maharanee of Baroda v Wildenstein [1972] 2 QB 283.

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Private Interests and Private Law Regulation 345

France

Limits of public international law jurisdiction; Diplomatic protection?

Belgium Nationality

UK

Denial of justice; Diplomatic protection?

Applicable Due process; Adjudicative and law? enforcement jurisdiction

Defendant (French)

Germany

Access to justice

Contract / civil claim

Nationality

Claimant (German)

• French and German companies enter into a contract governed by Belgian law • German company sues French company for breach of contract in England • Jurisdiction could be based on eg domicile, involvement of English branch, choice of court agreement, place of breach • Belgian law will be applied by the English courts to govern the substantive dispute

FIGURE 14.3 Jurisdictional framework—civil jurisdiction

the territory, or the fact that a contract under dispute is governed by English law.64 Although such exercises of jurisdiction do invite an occasional mild critical comment,65 it is rare for states to directly criticize the grounds of jurisdiction exercised by other states in civil matters, and this might be viewed as acquiescence in such expansive grounds of jurisdiction. This in turn could raise doubts about whether traditional international law jurisdictional constraints genuinely limit the exercise of state adjudicative authority in civil law matters.66 Such doubts would, however, have less to support them than may initially appear to be the case. The first point to note is that the exercise of exorbitant grounds of jurisdiction is relatively uncommon and is likely to depend on other factors. The English courts, for example, will rarely exercise jurisdiction over a case solely on the basis of the connections above, and the exercise of such jurisdiction is discretionary. On the other hand, the main factors taken into account in the exercise of this discretion are (i) the efficient conduct of the litigation, and (ii) protecting the rights of access to justice of a claimant, as discussed further herein.67 This might suggest that the decision on whether to exercise jurisdiction is not focused on the existence of a connection between the dispute and the forum which justifies the exercise of power, but rather on (i) the practicalities of dispute 64 See Civil Procedure Rules (England and Wales), Practice Direction 6B, r. 3.1(6). 65 See e.g. Kevin M. Clermont and John R. B. Palmer, ‘Exorbitant Jurisdiction’, Maine Law Review 58 (2006): 474. 66 As in the Restatement (Fourth) of Foreign Relations Law, discussed in Section II of this chapter. 67 See n. 35; Paul Torremans et al. (eds.), Cheshire, North, and Fawcett: Private International Law, 15th edn (Oxford University Press, 2017), 351 et seq., 392 et seq.

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346 Alex Mills resolution in the interests of the parties, and (ii) the rights of claimants. This does appear to represent a more significant challenge to the traditional public international law approach to jurisdiction, which is focused on the powers of states rather than the interests of the parties. A second point to note is that although a court may hear a claim over a defendant who is not present in the territory in many cases, the enforcement powers of the court remain strictly territorial, even in civil matters. Civil jurisdiction over a defendant who is not present in the territory and not subject to enforcement jurisdiction might be considered as a form of jurisdiction in absentia. In such cases, the exercise of enforcement jurisdiction would ordinarily require the cooperation of foreign courts, through the rules on the recognition and enforcement of foreign judgments, which are likely not to recognize judgments based on an exorbitant exercise of jurisdiction (and thereby express their disapproval of that exercise).68 The projection of regulatory authority over absent defendants may thus be ineffective. However, this will not be the case where a defendant has assets in the territory which are vulnerable to seizure, even if those assets are unconnected to the dispute. There are also examples of the English courts using the technique of extraterritorial projection (discussed in Section II of this chapter) in this context. Where a defendant is subject to the jurisdiction of the courts (in the sense of being properly a defendant in English substantive proceedings), the court may, for example, purport to freeze assets of the defendant around the world.69 Although the English courts cannot of course enforce such orders outside the territory directly, compliance may be indirectly enforced through the fact that breach of such orders will constitute contempt of court, potentially leading to a default judgment and perhaps even criminal liability. For defendants with assets in England, the vulnerability of their assets to seizure is likely to lead to compliance with these orders around the world—thus, local enforcement jurisdiction is used to project regulatory power extraterritorially. The courts have recognized that such action, even if consistent with international law jurisdictional constraints, raises comity concerns.70 However, if the defendant and their assets remain outside the territory, enforcement of these orders will also require the cooperation of foreign courts. If the English courts award a default judgment for violation of a freezing order, it equally remains open to foreign courts to review whether that judgment should be enforced.71 The effectiveness of exercises of civil jurisdiction thus remains constrained by public international law limits on enforcement jurisdiction. Despite these points, the fact that the grounds of jurisdiction in civil matters are framed more broadly than those traditionally exercised in criminal matters, encompassing a variety of connecting factors (as discussed further later), might nevertheless present a challenge to the view that the exercise of civil jurisdiction is limited by public international law. This is particularly because jurisdiction based on the territorial or 68 See generally e.g. Torremans et al. (n. 67), chs. 17–18. 69 See e.g. Banco Nacional de Comercio Exterior SNC v Empresa de Telecomunicationes de Cuba SA [2007] EWCA Civ. 622; Motorola Credit Corp v Uzan (No. 6) [2003] EWCA Civ. 752. 70 See e.g. Mobil Cerro Negro Ltd v Petroleos De Venezuela SA [2008] EWHC 532 (Comm). 71 See e.g. Case C-619/10 Trade Agency Ltd v Seramico Investments Ltd, EU:C:2012:531.

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Private Interests and Private Law Regulation 347 personal connections of the defendant—the territorial presence of the defendant, or the domicile of the defendant—is typically evaluated as at the time the proceedings are commenced.72 It is unclear that these connections should justify the actualization of prescriptive jurisdiction over events which took place prior to those connections existing. For example, a French party responsible for a tort in France with another French party may subsequently decide to move to England, and become subject to the civil jurisdiction of the English courts, but it is problematic to suggest that this ought to justify the retrospective application of English tort law to events which were at the time entirely unconnected with England. The major response to these concerns in the context of private law is, as noted, the separation of the questions of adjudicative and prescriptive jurisdiction through choiceof-law rules. A court may take jurisdiction over the proceedings, but apply foreign rules of private law. To put this another way, in the context of private law adjudication courts may actualize another state’s exercise of prescriptive jurisdiction. In private law, the scope of application of the rules of different states is generally not addressed as part of the rules themselves—unlike a criminal statute, which may set out its territorial or personal scope of application, rules of national contract law do not generally contain provisions delimiting their territorial scope of application. The scope of application of rules of private law is rather determined indirectly through the application of choice-of-law rules. The analysis must then turn to whether those choice-of-law rules are consistent with international jurisdictional constraints. One important point to note is that the connections which are examined in the choice-of-law process are considered as they were at the time the cause of action arose, not at the time the proceedings were commenced. When looking at personal connecting factors under EU choice-of-law rules in tort, for example, the focus is not on the current domicile of the defendant (as it is under the law of jurisdiction) but on the habitual residence of the defendant at the time of an alleged tort.73 The connections examined as part of the choice-of-law process more clearly also reflect traditional jurisdictional constraints, as they are focused on the objective connections between the parties or their dispute and a particular state rather than, for example, the question of efficient dispute-resolution. Where a state is exercising what might be viewed as exorbitant jurisdiction over a dispute with a limited territorial connection to the forum, it is likely that the court will in fact apply foreign substantive law. The analysis of whether an exercise of civil jurisdiction is compatible with international constraints thus has to take into consideration the fact that the adjudicative and prescriptive elements are potentially separated in civil proceedings. This does not mean, of course, that the exercise of civil prescriptive jurisdiction is not subject to international constraints. A court which applied its own law in a case arising out of events which were solely foreign-connected would arguably be actualizing its 72 See e.g. Ministry of Defence for Iran v Faz Aviation [2007] EWHC 1042 (Comm). 73 See e.g. Regulation (EC) No. 864/2007 of the European Parliament and of the Council on the law applicable to non-contractual obligations (Rome II), OJ L 199, Art. 4(2): ‘where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply’.

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348 Alex Mills rescriptive jurisdiction in a way which was contrary to international law. It would be p less clear how to analyse a case in which a court applied a foreign law in circumstances which were unjustifiable—the court would not be extending its own prescriptive jurisdiction, but the state whose law is applied could hardly be responsible for the application of its law beyond jurisdictional limits by a foreign court. This problem is, however, more theoretical than real—in general, choice-of-law rules rely on personal or territorial connections which would satisfy public international law jurisdictional limitations, although the following section notes some ways in which the connecting factors relied on may present a challenge. Where a court is applying foreign law, the question of whether its exercise of adjudicative jurisdiction (in this context, meaning purely the question of jurisdiction in a private international law sense) is consistent with public international law constraints thus becomes more complex but may also appear less significant. A court will apply its own procedural rules, regardless of whether foreign substantive law governs,74 but these essentially regulate the local conduct of proceedings rather than impose legal rules on potentially foreign conduct as a matter of prescriptive jurisdiction. If the exercise of adjudicative jurisdiction does not involve, or does not necessarily involve, the exercise of prescriptive jurisdiction, this raises the possibility that adjudicative jurisdiction in civil matters could be governed by distinct constraints. As discussed earlier, the practice of the English courts, for example, suggests that the interests of the parties have a greater role to play here, although jurisdiction is also frequently based on traditional territorial connections. A further question may be raised, however, concerning statutory mandatory rules— rules of the forum state which (exceptionally) are applied regardless of whether foreign substantive law governs the proceedings.75 These appear to be actualized by the mere exercise of adjudicative jurisdiction, and their application may therefore raise greater concerns regarding the compatibility of private international law rules with international jurisdictional constraints. These are rules which exceptionally establish a link between adjudicative jurisdiction, in the private international law sense, and the exercise of prescriptive jurisdiction, because they circumvent the usual choice-of-law process under which foreign substantive law may govern. These concerns might be addressed through principles of statutory interpretation, such as a presumption against extraterritoriality or extra-jurisdictionality in the scope of application of mandatory rules, under which statutory mandatory rules may thus be ‘self-limiting’.76 In the absence of such limits, the potential existence of mandatory rules suggests that the exercise of adjudicative jurisdiction in private law matters, although limited in effect because of the possible application 74 See generally e.g. Richard Garnett, Substance and Procedure in Private International Law (Oxford University Press, 2012). 75 See generally e.g. Alex Mills, Party Autonomy in Private International Law (Cambridge University Press, 2018), ch. 9; Torremans et al. (n. 67), 143 et seq. 76 See classically e.g. Kurt Lipstein, ‘Inherent Limitations in Statutes and the Conflict of Laws’, International and Comparative Law Quarterly 26 (1977): 884; see further the Restatement (Fourth) of Foreign Relations Law, discussed in Section II of this chapter.

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Private Interests and Private Law Regulation 349 of foreign substantive law, should nevertheless be constrained by public international jurisdictional principles because it entails the exercise of a limited prescriptive jurisdiction in the form of such rules.

IV.3. Additional Connecting Factors A second factor which distinguishes state practice in the context of private law from that of public law is the emergence of connecting factors which go beyond or which hybridize the traditional territorial and nationality-based factors recognized in public international law rules of jurisdiction. As already noted, states may, for example, rely on connections of domicile, residence, or habitual residence as factors both in the exercise of jurisdiction and in the determination of the applicable law. Unlike the concept of nationality, these factors are not based on a legal connection between a person and a state. The exact definitions of domicile, residence, or habitual residence may vary between legal systems, but they generally involve an examination of the factual connections between the person and territory (such as the duration of physical presence). In some cases, these factors may also require consideration of not just factual but also psychological connections, such as whether the person intends to live indefinitely in the territory—a factor which has a particularly strong influence on the common law conception of domicile.77 What is distinctive about each of these factors is that regulating a party based on their domicile or residence is not a matter of regulating the person (based on nationality) or the events (based on territoriality), but rather based on the territorial connections of the person, fusing traditional conceptions of state authority in international law. In the exercise of criminal jurisdiction, states almost invariably rely on territory or nationality as a connecting factor, although there are rare examples of residence being used78 which may suggest that the greater flexibility of connecting factors in the context of civil jurisdiction is also influencing practice in the context of public law. The application of a test of ‘nationality’ to a legal entity is not necessarily straightforward, but has been viewed as most closely analogous to the concept of the law of incorporation (or the equivalent concept of legal formation).79 This approach was developed in the context of diplomatic protection, which also relies on a link of ‘nationality’, but may equally apply in the context of jurisdiction. In private law disputes, concepts of domicile or residence are also applied to corporate parties, providing that jurisdiction or the applicable law may be determined based on factors other than the law of incorporation, such as the central administration or principal place of business of the company.80 Like residence, these are connecting factors which are based on the territorial connections 77 See e.g. Mark v Mark [2006] 1 AC 98; Holliday v Musa [2010] EWCA Civ. 335. 78 See e.g. Terrorism Act 2000 (UK), ss. 63A, 63B, and 63C (exercising both active and passive personality jurisdiction based on residence). 79 See generally e.g. Barcelona Traction, Light and Power Co. Ltd (Belgium v Spain) [1970] ICJ Rep. 3. 80 See e.g. Brussels I Regulation Recast, Art. 63.

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350 Alex Mills of the company and its business activities, rather than the territorial location of the events under dispute or the legal connection between the company and a state. Additional connecting factors may also be recognized, such as where a dispute arises out of the activities of a branch—the location of the branch may also potentially be relied on as a basis on which to establish jurisdiction or to determine the applicable law,81 even if the acts underling the claim occurred in a foreign territory.82 In each case, the connecting factor is a further hybridization of territorial and personal aspects, but with the added complexity that private international law can look beyond the single legal personality of a company to examine the factual connections which a branch may have with the dispute, and attribute jurisdiction or determine the applicable law based on the location of the branch. A further innovation in the context of private law is the widespread emergence of party autonomy as a connecting factor in the context of both jurisdiction and applicable law, potentially allowing parties to choose which court may hear their disputes or which law will govern their relationship.83 In jurisdiction, there is also the related doctrine of submission, under which a defendant may accept the jurisdiction of a court after proceedings have been commenced.84 In the context of choice of law, perhaps analogously, common law courts may default to forum law if the parties fail to plead the content of foreign law.85 The emergence of party autonomy and these related doctrines is particularly significant for present purposes because it is widely (although not universally) accepted that the parties may choose (or subsequently consent to) a forum or law unconnected with them or their dispute. Under these developments, the regulation of jurisdiction or choice of law has arguably shifted to give even further emphasis to the interests of private parties, although not without some constraints. The emergence of party autonomy as a doctrine is a complex phenomenon which requires its own detailed examination86—for present purposes, it is sufficient to note that it is subject to contested readings. On the one hand, party autonomy may be viewed as reflecting an agreement by states that the allocation of regulatory authority in the context of private law should not be subject to traditional public international law jurisdictional constraints, but rather should be at least primarily focused on serving the private interests of the parties— questions which the parties themselves are generally best placed to determine. On the other hand, party autonomy may be viewed as a more fundamental challenge to the jurisdictional power of states themselves, as it appears to recognize a power for private parties to determine the regulatory authority to which they are subject—it may thus be 81 See e.g. ibid., Art. 7(5); Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ L 177, Art. 19. 82 Lloyds Register of Shipping v Campenon [1995] ECR I 961. 83 See generally e.g. Peter Nygh, Autonomy in International Contracts (Oxford University Press, 1999); Mills (n. 75). 84 See e.g. Brussels I Regulation Recast, Art. 26. 85 See e.g. Torremans et al. (n. 67), ch. 7; Richard Fentiman, Foreign Law in English Courts: Pleading, Proof and Choice of Law (Oxford University Press, 1998). 86 See generally Mills (n. 75).

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Private Interests and Private Law Regulation 351 read as a partial privatization of the allocative function of public international law rules of jurisdiction. This is potentially a more radical reading of the influence of private interests in public international law jurisdiction. An even more radical possibility which has been widely discussed but rarely adopted by states is that private parties might determine that their legal relationship is governed by non-state law—thus privatizing not just the allocative function of rules of jurisdiction, but also the regulatory function of rules of private law.87

IV.4. Techniques to Manage Potentially Conflicting Regulation A third innovative aspect of the regulation of jurisdiction in the context of private law is the development by states of techniques which manage the possibility of conflicting regulation—seeking to avoid the ‘conflict of laws’ which gives the discipline of private international law its alternative name. The existence of additional connecting factors in private international law, as discussed earlier, might be viewed as increasing this risk, as a consequence of increasing the possibility for extraterritorial regulation. If, for e xample, the applicable law may legitimately be determined based on the domicile or residence of the defendant, as well as a variety of other territorial connecting factors such as the location of the events giving rise to the cause of action, this would appear to multiply the possibilities for more than one state to legitimately view its law as extending to those events. This could incentivize the commencement of proceedings based on strategic considerations rather than based on the most efficient resolution of the dispute, a practice generally disparaged as ‘forum-shopping’.88 Private international law has, however, responded to these concerns, in two primary ways. The first is provided by a traditional objective of private international law, made p ossible by the separation of adjudicative and prescriptive jurisdiction—the international unification of choice-of-law rules in pursuit of an objective of decisional harmony.89 Although more than one court may potentially have jurisdiction (in the private international law sense) over the proceedings, if each court is to apply the same governing law this greatly reduces the risk of inconsistent regulation arising. This is true only in respect of substantive rather than procedural questions (as each state will apply its own procedural law), but it is no coincidence that in the European Union the pursuit of h armonized rules of private international law has included an expanded conception of what questions count

87 See e.g. Mills (n. 75), ch. 10; Michael A. Helfand (ed.), Negotiating State and Non-State Law (Cambridge University Press, 2015); note esp. e.g. the Hague Principles on Choice of Law in International Commercial Contracts, Art. 3, https://www.hcch.net/en/instruments/conventions/full-text/?cid=135. 88 See generally e.g. Andrew Bell, Forum Shopping and Venue in Transnational Litigation (Oxford University Press, 2003). 89 See further e.g. Mills, Confluence (n. 32), 16 et seq.

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352 Alex Mills as ‘substantive’.90 Some theorists have doubted the utility of pursuing these objectives, at least internationally, and argued that private international law should be conceived as a purely domestic subject, with rules adopted purely in pursuit of domestic objectives.91 The discipline would, however, be greatly diminished if this approach were adopted. The fact that cross-border disputes engage the regulatory interests of foreign states, and thus questions of public international law jurisdiction, should not be ignored and has in practice formed an important part of most traditions of private international law thinking.92 Private international law has long recognized the virtue of consistency between states in choice-of-law rules, because internationalism has been and remains an important and influential aspect of the discipline. The harmonization of choice-of-law rules across the EU exemplifies this public systemic conceptualization of private international law, as does the important and ongoing work of the Hague Conference on Private International Law (the preeminent international organization responsible for the international harmonization of private international law93). International consistency is of course not the only value in choice of law—states may have different views on which law is most appropriate to apply—which is what makes harmonization a challenging project. But the fact that harmonization is recognized as a goal and a virtue in private international law reflects an acknowledgement of its international dimension and of its potential to manage the risk of conflicting regulation. The second way in which private international law has distinctively responded to concerns about overlapping exercises of regulatory authority is provided by constraints on the exercise of adjudicative jurisdiction. These have developed as a response to particular issues arising in the adjudication of private law disputes. In criminal law, as noted earlier, the major constraint on the exercise of jurisdiction is the need for the presence of the defendant in the territory in order for the possibility of enforcement jurisdiction to arise, which is generally a condition for the exercise of adjudicative jurisdiction. In the absence of the defendant, a state may seek to rely on extradition law, but this possibility will only emerge where a prosecution has not been carried out in another territory. The risk of double-criminality—being prosecuted twice for the same conduct—is generally dealt with by foreign double-jeopardy rules (in civil law, ne bis in idem). The fact that a person can only be in one territory at one time thus serves as a natural constraint on the potentially conflicting exercise of adjudicative criminal jurisdiction—although it does not address the risk of conflicting prescriptive jurisdiction. In civil law disputes, enforcement generally attaches not (or not only) to the defendant but to their assets, greatly increasing the possibility that more than one state might be able to exercise effective enforcement jurisdiction (without depending on the rules on the recognition and 90 Cf. e.g. the Rome II Regulation, Art. 15, with the previous position in England under Harding v Wealands [2006] UKHL 32. 91 See e.g. Friedrich K. Juenger, ‘Jurisdiction, Choice of Law and the Elusive Goal of Decisional Harmony’, Netherlands International Law Review 39 (1992): 137. 92 See e.g. Alex Mills, ‘The Identities of Private International Law: Lessons from the US and EU Revolutions’, Duke Journal of Comparative and International Law 23 (2013): 445. 93 See generally http://www.hcch.net.

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Private Interests and Private Law Regulation 353 enforcement of foreign judgments). A defendant with assets in more than one jurisdiction might readily find that a single act or event could be subject to adjudication in each jurisdiction, with the real prospect of that jurisdiction being effectively enforced. This is exacerbated by the fact that (unlike in the criminal context) proceedings can generally be brought both in positive and negative forms, seeking a determination of liability or a declaration of non-liability.94 Thus, in a cross-border dispute between parties from different states, each is potentially subject to suit in its home jurisdiction and in the jurisdiction where the events giving rise to the cause of action arose. Even if each state would apply the same substantive applicable law—which will of course, not always be the case, as decisional harmony is an objective or value rather than always a reality of choice of law—the subjection to multiple exercises of adjudicative jurisdiction is itself potentially not only inconvenient, but may in its expense frustrate the pursuit of a legitimate claim. There are a variety of techniques which have been developed as part of private international law to respond to these concerns, addressed to the question of adjudicative jurisdiction. In some contexts, rules of exclusive jurisdiction may be recognized, under which a single forum is viewed as having such a strong connection to the dispute that no possibility of parallel proceedings should arise.95 In other contexts, as already noted herein, proceedings may be stayed where a foreign court is clearly more appropriate to resolve the dispute, including but not limited to where proceedings are already pending before that foreign court.96 Alternatively, a more strict lis pendens rule may apply under which the court second seized of a dispute may be obliged to defer to the court first seized.97 Where a decision has already been reached in a foreign court, it will frequently be given a res judicata or estoppel effect, precluding further local proceedings, through the rules on the recognition of foreign judgments. In each case, the rule is designed (potentially among other things) to avoid the risk of parallel proceedings from arising and/or the possibility of conflicting regulation. The interaction between these rules and questions of access to justice raises a complex issue, as courts may have to evaluate whether foreign legal proceedings are able to deliver justice to the parties.98 Where the rules prioritize the court first seized, a further complexity is that such rules may potentially incentivize strategic litigation, commencing proceedings in an inconvenient court—even one which does not have jurisdiction—in order to frustrate the resolution of the dispute. This is a problem which has particularly arisen under EU jurisdictional regulation in the context of jurisdiction agreements, where the priority between the rules giving effect to party autonomy and those giving effect to lis pendens has proven 94 See e.g. discussion in Citigroup Global Markets Ltd v Amatra Leveraged Feeder Holdings Ltd [2012] EWHC 1331 (Comm); Messier-Dowty Ltd v Sabena SA [2000] EWCA Civ. 48; Andrew Bell, ‘The Negative Declaration in Transnational Litigation’, Law Quarterly Review 111 (1995): 674. 95 See e.g. the Brussels I Regulation Recast, Art. 24. 96 See e.g. Torremans et al (2017), 392 et seq. 97 See generally e.g. ibid., 442 et seq.; Campbell McLachlan, Lis Pendens in International Litigation (Leiden: Brill, 2009). 98 See e.g. the Brussels I Regulation Recast, Arts. 33 and 34 and Recitals 23 and 24.

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354 Alex Mills highly contentious and provoked reform.99 The key point for present purposes, however, is not to note the difficulties which may arise in regulating the management of parallel proceedings, but to note that private international law has developed distinctive rules for avoiding the possibility of conflicting regulation. This may be viewed at least in part as a response to the fact that in the context of private law jurisdiction the proliferation of connecting factors recognized, as well as the possibility for enforcement jurisdiction against the assets rather than the person of the defendant, might otherwise significantly increase the risk of such conflicts.

V. Conclusions The regulation of jurisdiction in international law has traditionally marginalized its ‘private’ dimensions—both in terms of the interests which it has taken into consideration, and in terms of the types of exercises of jurisdiction which have been studied. This is regrettable, as it has left the law of jurisdiction isolated from broader developments in the international legal order, and left public international lawyers relatively disengaged in the analysis of private law regulation. This chapter has argued for two developments in response. First, that the law of jurisdiction should recognize the significance of private actors and their rights and interests, which potentially require or constrain the exercise of jurisdiction by states in the context of both public and private law regulation. The exercise of jurisdiction should be understood within the more complex context of a modern international legal order under which individuals are recognized as subjects of international law with rights opposable to states. Second, that public international lawyers should engage more seriously with the distinctive issues raised by jurisdiction in the context of private law regulation, and the distinctive practice which has emerged in that context—in particular, the separation of adjudicative and prescriptive jurisdiction, the emergence of connecting factors which hybridize or add to the traditional connections of territory and nationality, and the development of techniques to manage the risk of potentially conflicting exercises of jurisdiction. The analysis of these private law dimensions to jurisdiction is complex, and the practice of states is in certain respects difficult to reconcile with the traditional public international law framework, and in other respects undoubtedly challenges that framework. This does not, however, mean that public international lawyers should view these private dimensions as falling outside the scope of the domain of the regulation of international jurisdiction (or indeed their professional interest)—rather, they should recognize and accept this complexity and, mindful of the fundamental significance of private law regulation in the contemporary global legal order, be open to the lessons it provides and the challenges it offers. 99 See e.g. David Kenny and Rosemary Hennigan, ‘Choice-of-Court Agreements, the Italian Torpedo, and the Recast of the Brussels I Regulation’, International and Comparative Law Quarterly 64 (2015): 197; Ian Bergson, ‘The Death of the Torpedo Action? The Practical Operation of the Recast’s Reforms to Enhance the Protection for Exclusive Jurisdiction Agreements within the European Union’, Journal of Private International Law 11 (2015): 1.

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Chapter 15

J u r isdiction a n d State R esponsibilit y Kimberley N. Trapp

I. Introduction

356

II. Prescriptive Jurisdiction

357

II.1. The Substantive Law of Prescriptive Jurisdiction II.2. Case Study: Universal Jurisdiction in the Terrorism Context II.3. State Responsibility for Excessive Prescriptive Jurisdiction II.3.a. Injury II.3.b. Circumstances Precluding Wrongfulness II.3.b.i. Consent II.3.b.ii. Countermeasures

III. Enforcement Jurisdiction

III.1. Substantive Law on Enforcement Jurisdiction III.2. Case Study: Territorial Enforcement Jurisdiction Predicated on Extraterritorial Abduction III.3. State Responsibility for Excessive Enforcement Jurisdiction III.3.a. The Continuing Character of the Breach and the Secondary Obligation of Cessation III.3.b. Circumstances Precluding Wrongfulness III.3.b.i. Consent III.3.b.ii. Countermeasures III.3.c. Remedies

IV. Conclusions

357

358 360 360 361 361 363

365

365

366 372 372 373 373 375 376

378

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356 Kimberley N. Trapp

I. Introduction There are a number of tensions in the current international legal order which reflect competing interests or paradigms. On the one hand, there is the classical conception of international law, in which the state is the exclusive actor and the international legal regime is deployed principally in defence of its interests (of present relevance, its interests in territorial sovereignty and non-intervention) and those of peaceful coexistence. On the other, developments in international law evidence a significantly more pluralistic and ‘human-centric’ approach to legal regulation—with increasing regard for the effective enforcement of human rights, and the protection of human security (most evident, for present purposes, in the development of criminal law enforcement regimes and their focus on ‘no impunity’). But even within these ‘paradigms’, there are tensions—for instance the drive for ‘no impunity’ in respect of a particular class of transnational crime is necessarily qualified by an obligation to respect human rights. These competing paradigms are, in some respects, reflected in the substantive law of jurisdiction (particularly criminal jurisdiction, so closely associated with conceptions of sovereignty), or might help to navigate between possible approaches to jurisdiction where positive law does not settle the matter. These paradigms may also have implications for the way in which the secondary rules of state responsibility do or should apply to internationally wrongful acts in respect of jurisdiction, and in turn the practice of state responsibility may support or provide evidence for the governing paradigm. While modern treatments of international law do not often address jurisdiction through the prism of state responsibility, classical texts (like F. A. Mann’s General Course on the subject at the Hague Academy1) lead with such a discussion, and the Permanent Court of International Justice (PCIJ) was twice seized of disputes in respect of responsibility flowing from an exercise of jurisdiction.2 Going back to basics, this chapter uses state responsibility as a useful prism through which to explore the law of criminal jurisdiction, in particular as regards the practice of state responsibility for excessive jurisdiction and the implications of the competing paradigms of international law in respect thereof.

1 F. A. Mann, ‘The Doctrine of Jurisdiction in International Law’, Collected Courses of the Hague Academy of International Law 111 (1964): 1. 2 Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) (1924) PCIJ Series B, No. 4, and more (in)famously, SS Lotus (France v Turkey) [1927] PCIJ Series A, No. 10.

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Jurisdiction and State Responsibility 357

II. Prescriptive Jurisdiction II.1. The Substantive Law of Prescriptive Jurisdiction The international law of prescriptive jurisdiction can be understood as tracking or reflecting certain conceptions of sovereignty.3 For instance, a positivist conception of sovereignty—whereby states have unrestricted freedom subject only to limitations which they have accepted (whether individually or collectively through a process of customary international law formation)—is reflected in certain aspects of the PCIJ’s decision in the Lotus case. In that case, the Court infamously held that ‘[f]ar from laying down a general prohibition to the effect that States may not extend the application of their laws . . . to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules’.4 On another view, sovereignty is a legal construct, the contours of which are defined by law. Ian Brownlie, for instance, defined sovereignty as ‘the legal competence which states have in general’.5 This conception of sovereignty obviously sounds in the law of jurisdiction—most notably the view that prescriptive jurisdiction is limited to heads of jurisdiction defined by law (e.g. territoriality and nationality).6 From a purely theoretical standpoint, modern trends—including the forces of globalization (as regards the movement of people, goods, and criminality across borders), the increasing importance of human rights (e.g. the principle of legality), and the evershrinking tolerance for impunity in respect of a certain class of crime—pull in both of these opposing ‘jurisdictional’ directions. One direction, in keeping with the presumptive freedom of Lotus, requires a broad approach to permissible exercises of prescriptive jurisdiction—giving states the regulatory space within which to (i) fully protect their interests and the interests of persons ‘subject to their jurisdiction’,7 both of which are increasingly affected from abroad, and (ii) to act in defence of the interests of the 3 See A. Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84 (2014): 187. 4 Lotus case (n. 2), 18–19. While commentators have long held that this statement ‘cannot claim to be good law’ (Mann (n. 1), 35), Crawford suggests the statement has an ‘uncertain status’. J. Crawford, Brownlie’s International Law, 8th edn (Oxford University Press, 2012), 477. See also D. Guilfoyle, ‘SS Lotus (France v Turkey)’, in Landmark Cases in International Law (Oxford: Hart Publishing, 2017) for an alternative reading of the decision (suggesting that the Lotus judgment never in fact relied on the ‘presumptive freedom’). 5 I. Brownlie, Principles of Public International Law, 7th edn (Oxford University Press, 2008), 291. 6 Mills (n. 3). 7 ‘Jurisdiction’ is here used in the ‘human rights obligation triggering’ sense, in that it defines the scope of application of human rights treaties. For example, Art. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 213 UNTS 222, reads: ‘The High

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358 Kimberley N. Trapp international community as a whole (of particular relevance, in defence of the ‘no impunity’ imperative). The other direction, accounting for the increasing overlap in jurisdictional interests born of globalization, and with a view to avoiding conflict on the one hand, and giving effect to the principle of legality on the other (in that individuals should not be subject to domestic criminal processes that they could not have foreseen), restricts the exercise of prescriptive jurisdiction to clearly identified and identifiable heads of jurisdiction. Sections II.2 and II.3 of this chapter explore the pull and implications of these different ‘jurisdictional’ directions through the prism of state responsibility as applied to a case study involving contested assertions of universal jurisdiction.

II.2. Case Study: Universal Jurisdiction in the Terrorism Context There are more than a dozen criminal law enforcement treaties in respect of terrorism, all of which impose jurisdictional obligations on states—which is to say that States Parties are bound, by international treaty law, to exercise their prescriptive jurisdiction in enumerated ways.8 In particular, these terrorism suppression conventions oblige states to criminalize (and appropriately penalize) the crimes they address, principally on the basis of customary heads of jurisdiction (like territoriality and nationality), and permit states to exercise prescriptive jurisdiction on the basis of passive personality.9 The obligation to criminalize on the basis of nationality is, in part, to counteract the impunity that might otherwise arise from state constitutional or legislative protections which prohibit the extradition of nationals. As to passive personality, the permission granted responds to the general sense that this basis of jurisdiction is ‘more strongly contested than any other type of competence’.10 These criminal law enforcement conventions simply restate customary international law in respect of jurisdiction, but do so in the form of an obligation Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention’ (emphasis added). 8 See http://www.un.org/en/counterterrorism/legal-instruments.shtml for a full list of what will be referred to throughout this chapter as the ‘terrorism suppression conventions’. 9 See e.g. Arti. 5(1)(d) of the International Convention against the Taking of Hostages, 17 December 1979, 1316 UNTS 205; Art. 6(2)(a) of the International Convention on the Suppression of Terrorist Bombings, 15 December 1997, UN Doc. A/RES/52/164 (1997); Art. 9(2)(a) of the International Convention for the Suppression of Acts of Nuclear Terrorism, UN Doc. A/59/766 (2005). 10 Harvard Research in International Law, Draft Convention on Jurisdiction with Respect to Crime, American Journal of International Law 29 Supp. 1 (1935): 623, Art. 16, 579. See also Lotus case (n. 2), dissenting opinions of Judges Loder, 36; Finlay, 55–8; Nyholm, 62; and Moore, 91–3. As the terrorism suppression conventions all address serious crimes, the permission in respect of passive personality prescriptive jurisdiction is not creative of the right, but simply addresses any doubt as to its existence as a matter of customary international law (insofar as this basis of jurisdiction is restricted to ‘serious offences’—see Arrest Warrant (DRC v Belgium) [2002] ICJ Rep. 3 (Judges Higgins, Kooijmans, and Buergenthal, sep. op., para. 47); R. O’Keefe, International Criminal Law (Oxford University Press, 2015), §8.21; C. Ryngaert, Jurisdiction in International Law, 2nd edn (Oxford University Press, 2015), 112).

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Jurisdiction and State Responsibility 359 to exercise bases of jurisdiction which were otherwise already recognized and available as a matter of right and discretion. These terrorism suppression conventions also oblige states to exercise universal jurisdiction in respect of terrorist crimes which are not otherwise considered to be subject to universal jurisdiction under customary international law.11 On one view—which rejects the presumptive freedom of Lotus; strictly limits permissible exercises of prescriptive jurisdiction to accepted heads; and adopts a North Sea Continental Shelf approach to the prospects of treaty rights and obligations morphing into customary international law12— the terrorism suppression conventions bilateralize universal jurisdiction.13 An exercise of treaty-based (and bilateralized) universal jurisdiction would only be permissible as between States Parties to a particular criminal law enforcement treaty, which is to say as against the nationals of States Parties or in respect of crimes committed in the t erritory of States Parties, but would otherwise be impermissible. On the other hand, taking a more liberal view of the likelihood that treaty rights and obligations might pass into custom, and accounting for broader developments in international law (i.e. in respect of ‘no impunity’), there is support for the argument that the entitlement to exercise universal jurisdiction in respect of terrorism is no longer restricted to purely inter partes criminal law enforcement frameworks. This is even the case if the obligation to exercise such jurisdiction is limited to States Parties to the terrorism suppression conventions. Conceiving of universal jurisdiction as bilateralized in such cases reflects in some respects the interests of states in non-intervention (vis-à-vis their nationals or crimes committed in their territories) and potentially in principle-of-legality concerns (insofar as individuals should not be subject to criminal processes which they could not have known they might be subject to). Alternatively, any development of treaty-based universal jurisdiction into a universally applicable right would reflect the interests of the international community as a whole, in support of the increasing imperative of ‘no impunity’ in respect of a class of serious crimes. A study of the practice of all states in respect of exercising universal jurisdiction over terrorist crimes subject to a criminal law enforcement treaty, when they are not party to the treaty, is beyond the scope of this short chapter. There is, however, some practice in respect of invoking responsibility for the exercise of prescriptive jurisdiction, explored below, which supports the second approach.

11 See K. N. Trapp, State Responsibility for International Terrorism (Oxford University Press, 2011), §3.2. 12 North Sea Continental Shelf (Germany v Denmark), Merits, Judgment (1969) ICJ Rep. 3. In particular, the Court held, in respect of States Parties to a treaty, that they are ‘presumably, so far as they [are] concerned, actually acting or potentially acting in the application of the Convention. From their action no inference could be legitimately drawn as to the existence of a rule of customary international law’: para. 76. 13 See United States v Ali, 885 F Supp. 2d 17 (2012).

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360 Kimberley N. Trapp

II.3. State Responsibility for Excessive Prescriptive Jurisdiction II.3.a. Injury Unlike in respect of adjudicative or enforcement jurisdiction (discussed in Section III of this chapter), a mere exercise of prescriptive jurisdiction (however excessive) can be a delict without precisely identifiable injury. And there is some debate over the extent to which an excessive exercise of prescriptive jurisdiction in the criminal sphere needs to be ‘actualized’ (or result in injury) in order to give rise to state responsibility.14 While damage or specific injury is not a prerequisite for state responsibility as a matter of the general secondary rules of international law, some commentators nevertheless assert that wrongfulness in the context of prescriptive jurisdiction hangs on protest by an ‘injured state’.15 Indeed, in terms of practice, states very rarely (if ever) protest or invoke responsibility for a mere exercise of criminal prescriptive jurisdiction, even if that exercise of jurisdiction is not based on an accepted head of jurisdiction. Instead, it is the exercise of adjudicative or enforcement jurisdiction—predicated on an excessive exercise of prescriptive jurisdiction—which catalyses invocations of responsibility.16 Given that the exercise of adjudicative or enforcement jurisdiction in the jurisdiction exercising state’s own territory will in itself be a lawful exercise of jurisdiction (barring issues related to abduction of the accused, as discussed in Section III of this chapter), this suggests that 14 States have certainly invoked responsibility for the mere (unactualized) exercise of prescriptive jurisdiction in the civil context—particularly in the sphere of economic law. The basis for such invocations of responsibility is the implicit threat of enforcement and the ‘chilling effect’ any such legislation may have on the business activities of multi-national corporations (for instance). This is a somewhat amorphous, yet nevertheless perceived, injury caused by the possibility of actualization. See Ryngaert (n. 10), 40; R. O’Keefe, ‘Domestic Courts as Agents of Development of the International Law of Jurisdiction’, Leiden Journal of International Law 16 (2013): 541, 552. 15 See e.g. Ryngaert (n. 10), 128, in respect of universal jurisdiction; A. J. Colangelo, ‘The Legal Limits of Universal Jurisdiction’, Virginia Journal of International Law 47 (2006): 149, 184. Wrongfulness, however, should not be understood as predicated on protest, in that a breach of an international obligation is objectively determined, and responsibility arises by operation of the law. See Commentary to Article 43[2], Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, in Report of the International Law Commission (ILC) on the work of its fifty-third session, UN Doc. A/56/10 (2001), 31 (ARSIWA and Commentaries). These references to protest may either be understood as suggesting that injury or actualization is a necessary element of an internationally wrongful act in breach of rules governing prescriptive jurisdiction (with the absence of protest amounting to evidence in respect of opinio juris on the precise content of the underlying primary rule), or that the absence of protest amounts to acquiescence and a waiver of the right to invoke responsibility (see n. 67). Understood in terms of a necessary element of an internationally wrongful act, the suggestion draws on a long line of authority: See e.g. Mann (n. 1), 14 (albeit accepting, at 15, that where the adoption of legislation implies the likelihood of enforcement, a wrongful act is committed with the adoption); M. Akehurst, ‘Jurisdiction in International Law’ 145 British Yearbook of International Law 46 (1972): 145. Crawford on the other hand, is less definitive: ‘The consequences of the mere passage of legislation asserting exorbitant jurisdiction remain an open question.’ Crawford (n. 4), 477. 16 See O’Keefe (n. 14).

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Jurisdiction and State Responsibility 361 actualization (or injury) is indeed a necessary element of wrongfulness in respect of the predicate exercise of prescriptive jurisdiction in the criminal sphere. In respect of this case study on prescriptive jurisdiction, and admitting that the state practice is limited, it is notable that states that are not party to relevant terrorism suppression conventions have not protested the prosecution of their nationals on the basis of universal jurisdiction by States Parties thereto.17 Accepting that such a prosecution actualizes the exercise of prescriptive jurisdiction, this practice of non-invocation might suggest that states do not in fact consider the underlying exercise of universal jurisdiction to be wrongful—supporting in some respects the view that the obligation to exercise universal jurisdiction imposed by certain treaty frameworks has morphed into a more generally applicable entitlement.18 This is not, however, the only possible interpretation of this practice—at least not in the context of offences covered by terrorism suppression conventions and UN Security Council resolutions. To the extent that UNSCR 1373 (2001) is interpreted as at least permitting states to exercise universal jurisdiction over ‘terrorist’ offences,19 and an authorization is understood to engage Article 103 of the UN Charter,20 such permission would then trump any ‘law of jurisdiction’ limitations on the exercise of universal jurisdiction as against nationals of non-States Parties to a terrorism suppression convention. In light of this alternative explanation, coupled with the limited extent of state practice, it remains an open question as to whether universal prescriptive jurisdiction is a matter of bilateral state relations or a generalized entitlement in respect of terrorist offences. From a human rights perspective, there are potentially principle-of-legality concerns in respect of this uncertainty. If international lawyers cannot determine whether the actualization of universal jurisdiction against nationals of non-States Parties to relevant criminal law enforcement treaties is lawful or not, it is hard to see how accused parties will be in a position to do so. These concerns may, of course, be balanced by the ‘no impunity’ imperative insofar as the crimes hereunder discussion are very serious—as discussed in Section IV of this chapter.

II.3.b. Circumstances Precluding Wrongfulness The wrongfulness of an excessive exercise of jurisdiction might be precluded on the basis of one of two circumstances recognized in the ILC’s Articles on State Responsibility (ARSIWA): consent and countermeasures. II.3.b.i. Consent A state’s exercise of criminal jurisdiction in respect of a person over which it had no jurisdiction under international law might not be wrongful, if it were with the consent 17 Ryngaert (n. 10), 124–5. 18 See further the joint separate opinion of Judges Higgins, Kooijmans and Buergenthal, Arrest Warrant Case (n. 10), para. 46. 19 See the Technical guide to the implementation of Security Council Resolution 1373 (2001) and other relevant resolutions (2017), at 58. 20 See e.g. R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58.

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362 Kimberley N. Trapp of the injured state. Let us again consider a terrorism prosecution based on universal jurisdiction against the national of a non-State Party to the relevant terrorism suppression convention.21 Were the state of nationality to consent to the prosecution, that exercise of universal jurisdiction would not be wrongful vis-à-vis the state of nationality.22 Whether consent is considered as a fully effective circumstance precluding wrongfulness in respect of this case study, however, may be dictated by the perspective one adopts on the law of jurisdiction. A classical or state-centric approach to the law of jurisdiction is characterized in terms of state entitlement and discretion, limited only by the overlapping interests of other states and the dictates of non-intervention. Viewed through this lens, the state of nationality’s consent would be a fully effective circumstance precluding wrongfulness. The modern law of jurisdiction, however, is increasingly conceptualized in human-centric terms—insofar as states owe jurisdictional obligations to individuals,23 and states’ jurisdictional entitlements are tempered by individual rights.24 In particular, the exercise of universal jurisdiction as against the national of a non-State Party to the relevant criminal law enforcement treaty may have principle-of-legality implications— insofar as nullum crimen sine lege is concerned.25 The space for such human rights arguments is undoubtedly shrinking in that crimes which are the subject of criminal law enforcement treaties receive a great deal of international attention and, in any event, cover conduct that is subject to criminal sanction in virtually all domestic legal systems.26 21 While the practice of invoking (or indeed not invoking) state responsibility for an exercise of u niversal jurisdiction as against the national of a non-State Party to a relevant criminal law enforcement treaty (as discussed in Section II.3.a of this chapter) suggests that such an exercise of jurisdiction is not considered unlawful, the practice is far too limited for the drawing of decisive conclusions. For the purposes of the present exploration, let us assume that the entitlement to exercise universal jurisdiction is bilateralized as between States Parties. 22 Art. 20 ARSIWA and Commentaries (n. 15). 23 See Mills (n. 3). 24 On human rights as a source of limitation on jurisdictional entitlement, see discussion of the European Commission of Human Rights (Eur. Comm. HR) in Stocké v Germany and the European Court of Human Rights (ECtHR) in Öcalan v Turkey (nn. 55–8, 77–8, 82 and accompanying text). 25 See Art. 15 of the International Covenant on Civil and Political Rights, 999 UNTS 171 (ICCPR); Art. 7 ECHR; Art. 9 of the American Convention on Human Rights, 1144 UNTS 123. Assuming a person commits a crime outside their state of nationality, principle-of-legality issues may also arise if the state in whose territory the crime is committed (in respect of which universal jurisdiction is exercised by a foreign state) is not party to a relevant criminal law enforcement treaty. 26 See e.g. Ould Dah v France, App. No. 13113/03, ECtHR, Décision sur la Recevabilité de 17 Mars 2009, (2009) 48 ILM 871. The Court held that France’s exercise of universal jurisdiction for torture, as against a Mauritanian national, did not breach the accused’s rights under Art. 7 ECHR (in respect of nullum crimen sine lege) because (i) the acts were subject to universal jurisdiction under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 85 UNTS 1465 (CAT), which was in force at the time of their commission, and (ii) because they were punishable in France at the time. The Court did not have regard for the fact that Mauritania was not a party to the CAT at the time of the impugned conduct (Mauritania became a State Party in 2004, while the relevant conduct in question occurred between 1990–1), and dismissed the relevance of the amnesty granted to the accused in Mauritania in respect of the conduct which was subject to the French universal jurisdiction prosecution. The Court’s reasoning in this regard appears to be heavily conditioned by the jus cogens nature of the prohibition against torture, and the prohibition of torture under the African Charter on Human and Peoples’ Rights, 1520 UNTS, applicable ‘to the continent from which the accused originates’ (author’s translation), at 881. While terrorist crimes cannot be characterized as the subject of a jus cogens

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Jurisdiction and State Responsibility 363 But in the terrorism context, given the often strict penalties attached to crimes when they are characterized as terrorist (as distinguished from ordinary crimes), principle-oflegality concerns remain.27 The law of states which are not party to relevant terrorism suppression conventions may well criminalize relevant conduct as an offence against the person or property, but its characterization as ‘terrorist’ would not be foreseeable to its nationals, nor would the possibility of their being subject to prosecution for ‘terrorism’ abroad on the basis of universal jurisdiction. And to the extent that principle-of-legality concerns are present, they relate to rights the accused holds as against the jurisdiction exercising state. Consent of the state of nationality could not address those breaches, nor could it preclude their wrongfulness.28 II.3.b.ii. Countermeasures Let us again assume that, in respect of this prescriptive jurisdiction case study, the lawfulness of an exercise of universal jurisdiction as against the national of a non-State Party to a relevant terrorism suppression convention is an open question (and might be characterized as excessive and unlawful). It is possible that an (otherwise wrongful) exercise of universal jurisdiction against the national of a non-State Party could be characterized as a countermeasure in response to a failure by the state of nationality to meet its criminal law enforcement obligations under Security Council resolutions.29 In order for countermeasures to be lawful (and to benefit from wrongfulness preclusion), they need to be both necessary and proportionate.30 The necessity of the measure rohibition, the ECtHR’s point seems to be that worldwide awareness of the criminal status of the p conduct (and the gravity with which such conduct is regarded) counts against a finding that the principle of legality has been breached, even in respect of universal jurisdiction prosecutions. 27 See e.g. the Inter-American Court of Human Rights’ decision on a presumption of terrorist intent in respect of offences committed using incendiary or explosive devices (which presumption is arguably in keeping with the way in which such offences are defined under the Terrorist Bombing Convention): ‘When defining offenses of a terrorist nature, the principle of legality requires that a necessary distinction be made between such offenses and ordinary offenses, so that every individual and also the criminal judge have sufficient legal elements to know whether an action is penalized under one or the other [regime].’ Case of Norín Catrimán and Others v Chile, IACtHR Series C, No. 279 (29 May 2014), para. 163. See further Human Rights Council (HRC), Report of the Special Rapporteur for the promotion and protection of human rights and fundamental freedoms while countering terrorism (Martin Scheinin), Addendum, UN Doc. A/HRC/6/17/Add.1 (28 November 2007), expressing concern that the Philippines define common crimes as ‘terrorist’ in principle-of-legality terms. 28 The ILC highlights that the consent of state A (in respect of conduct otherwise in breach of an obligation owed to state A) cannot preclude the wrongfulness of that conduct insofar as it is also in breach of an obligation owed to state B. ILC Commentary (n. 15), Art. 20, para. 9. The same principle applies vis-à-vis the wrongfulness of an obligation owed to an individual. 29 In respect of acts of terrorism, UNSCR 1373 (2001), para. 2(e), requires states to ‘[e]nsure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts’. Any state failing to meet this obligation, binding in virtue of Art. 25 UN Charter, would be committing an internationally wrongful act. 30 Art. 51 ARSIWA and Commentaries (n. 15). See further Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ Rep. 14, para. 249; Gabcíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep. 7, para. 85.

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364 Kimberley N. Trapp is in part judged on the extent to which the measure is a response of ‘later (if not final) resort’.31 As a result, excessive jurisdiction should only be exercised by way of countermeasure if the prosecuting state has called on the state of nationality to comply with its Security Council imposed criminal law enforcement obligations. Indeed, this is a precondition for the lawful adoption of countermeasures generally, as set out in Article 52(1)(a) ARSIWA.32 As to proportionality (strictly in reference to wrongfulness preclusion vis-à-vis the state of nationality), the matter is complicated because third-party interests are implicated. Unlike a civil case against a state, in respect of which (for instance) that state’s immunity is ignored by way of countermeasure in response to its own prior internationally wrongful act,33 a criminal trial affects a ‘third party’—the person subject to prosecution, distinguishable from her state of nationality even if she is an agent thereof. While, as a general matter, countermeasures need not be ‘reciprocal’, in that they need not be related to the prior breach of international law which occasions their adoption,34 the more closely related the countermeasure is to the precipitating internationally wrongful act, the more easily proportionality can be made out.35 Indeed, in the criminal law context, reciprocity should be an essential part of the ‘proportionality’ calculus. Where an individual’s prosecution amounts to an excessive exercise of jurisdiction, which excess is in response to an internationally wrongful failure to prosecute that individual by her state of nationality, there is an effect on that individual’s interests. These effects on third party interests are more likely to be characterized as proportionate to the state of nationality’s wrongful conduct where they put the third party in the nearest position to the one she would have been in but for her state of nationality’s wrongful act. In each of the cases suggested here, had the state of nationality complied with its international obligations, the third party in question would have been subject to prosecution. The foreign state’s prosecution (an excessive exercise of prescriptive and adjudicative jurisdiction as against the national of a state not bound to recognize the applicability of universal jurisdiction thereto) therefore puts the prosecuted individual in as near to the same position as she would have been had her state of nationality complied with its international obligations. This argument as to the availability of countermeasures, however, only applies in respect of wrongfulness vis-à-vis the state of nationality of the accused. Assuming principle-of-legality issues are also implicated in the prosecution (see Section II.3.b.i), countermeasures cannot preclude the wrongfulness of a measure also in breach of 31 See J. Crawford, ‘Overview of Part Three of the Articles on State Responsibility’, in J. Crawford et al. (eds.), The Law of International Responsibility (Oxford University Press, 2010), 932. 32 ‘Before taking countermeasures, an injured State shall: (a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under part two.’ The obligations under Part Two include the continued duty of performance (pursuant to Art. 29) and the obligation of cessation and non-repetition (pursuant to Art. 30). 33 For a discussion of how such a countermeasure may play out in the civil context, see K. N. Trapp and A. Mills, ‘Smooth Runs the Water Where the Brook Is Deep: The Obscured Complexities of Germany v Italy’, Cambridge Journal of International and Comparative Law 1 (2012): 153. 34 See Commentary to Part Two, ARSIWA and Commentaries (n. 15), para. 5. 35 Ibid.

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Jurisdiction and State Responsibility 365 bligations owed to third parties, most particularly where those obligations are in respect o of fundamental human rights.36

III. Enforcement Jurisdiction III.1. Substantive Law on Enforcement Jurisdiction In criminal proceedings, the exercise of enforcement jurisdiction will, principally, take the form of arrest, detention, prosecution, and the carrying out of any resulting sentence. A lawful exercise of enforcement jurisdiction is, subject to very limited exceptions, strictly territorial37—states are prohibited from exercising enforcement jurisdiction in the territory of another state absent the consent of the territorial state or some other permissive rule under international law.38 The question hereunder consideration (in light of the focus on criminal jurisdiction) is the extent and content of prohibitive rules regarding enforcement jurisdiction within the jurisdiction exercising state’s own territory— and the answer thereto depends in some respects on the perspective one adopts or the international law paradigm one operates under. On one view, the lawfulness of an exercise of enforcement jurisdiction, within the jurisdiction exercising state’s own territory, is a purely factual question, not a normative one. This is to say that territorial enforcement jurisdiction is plenary, and a state may exercise that jurisdiction based purely on the physical presence of the accused. This approach views territorial enforcement jurisdiction through the lens of classical i nternational law and from the perspective of states. States’ plenary (and exclusive) control over their territories results in a territorially compartmentalized evaluation of enforcement jurisdiction—the lawfulness of an exercise of enforcement jurisdiction is evaluated purely on the basis of what side of the border it occurs on. This is, of course, not to say that there are no rules, sourced from other bodies of international law, which condition whether a state may exercise the territorial enforcement jurisdiction it has as a matter of right under the law of jurisdiction.39 36 Art. 50(1)(b) ARSIWA and Commentaries (n. 15). 37 Lotus case (n. 2), 18. While the PCIJ’s position in Lotus on prescriptive jurisdiction was controversial from the outset, the same is not true of its pronouncement on enforcement jurisdiction, which was and remains an accurate statement of the law. See Crawford (n. 4), 479. 38 The classical example of a permissive rule under international law allowing for extraterritorial enforcement jurisdiction is the right to seize a pirate ship (however flagged) on the high seas; see Art. 105 of the UN Convention on the Law of the Sea. 39 The ECtHR, in its Al-Adsani judgment, considers the law of immunities to condition the lawfulness of an exercise of enforcement jurisdiction (Al-Adsani v The United Kingdom, App. No. 35763/97, Judgment of 21 November 2001, para. 48). In its determination that Art. 6 (right of access to justice) is engaged by a state’s giving effect to applicable immunities, the ECtHR in effect held that the state has lawful jurisdiction, but that there are other rules of international law (sourced from the law on immunities) which prohibit the exercise of that jurisdiction in the particular case. This approach is to be distinguished from

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366 Kimberley N. Trapp The second perspective one might adopt in respect of enforcement jurisdiction is that of the physical person against whom such jurisdiction is exercised. From the perspective of an accused subject to a state’s exercise of enforcement jurisdiction, factors like territoriality are significantly less (if at all) relevant; the accused’s experience is of a continuous exercise of state power against them. Enforcement jurisdiction, from an individual’s perspective, is evaluated holistically—from arrest through to detention, trial, and sentence.

III.2. Case Study: Territorial Enforcement Jurisdiction Predicated on Extraterritorial Abduction The consequential nature of these different perspectives on the lawfulness of territorial enforcement jurisdiction, the one state-centric, the other human-centric, is most clearly illustrated by this second case study. Let us assume state A exercises territorial enforcement jurisdiction (in the form of a prosecution) against a person whom it has abducted from state B’s territory (also referred to as the ‘host state’), and that the abduction was purely for the purpose of securing the abductee/accused’s presence in state A’s territory for prosecution.40 Assume further that state B did not consent to, or otherwise acquiesce in, state A’s exercise of enforcement jurisdiction (in the form of arrest) in its territory. For the purposes of the case study, we shall assume a lawful arrest warrant was issued by state A for the arrest of the accused. This case study does not address the wildly unlawful practice of ‘rendition’ engaged in by the United States whereby a person is abducted from the host state by state A (with or without the acquiescence or assistance of state B), and transferred to state C for the purposes of ‘enhanced interrogation’.41 If we adopt the state-centric approach set out herein, and break the exercise of enforcement jurisdiction down into its territorial component parts, it is clear that the abduction in state B’s territory, by state A’s agents, is an internationally wrongful exercise the UK House of Lords decision in Jones v Saudi Arabia, particularly evident in Lord Bingham’s speech. In Lord Bingham’s estimation, the law of jurisdiction reflects both factual and normative elements (sourced from immunities law). He held that ‘the rule of international law is not that a state should not exercise over another state a jurisdiction which it has but that (save in cases recognised by international law) a state has no jurisdiction over another state.’ Jones v Saudi Arabia [2006] UKHL 26, para. 14. 40 This case study assumes an abduction by state A’s agents, but Mann has argued that a subsequent exercise of territorial enforcement jurisdiction over an accused by state A, where the accused had been abducted from state B by private persons, would amount to a ratification of the abduction. In modern state responsibility terms, this might well amount to a post facto adoption of the abduction, rendering state A responsible for at least the wrongful exercise of extraterritorial enforcement jurisdiction, pursuant to Art. 11 ARSIWA and Commentaries (n. 15). See A. Mann, ‘Reflections on the Prosecution of Persons Abducted in Breach of International Law’, in Yoram Dinstein (ed.), International Law at a Time of Perplexity (Dordrech: Martinus Nijhoff, 1989), 407, 409. 41 On this practice, see F. Messineo, ‘ “Extraordinary Renditions” and State Obligations to Criminalize and Prosecute Torture in the Light of the Abu Omar Case in Italy’, Journal of International Criminal Justice Journal of International Criminal Justice 7 (2009): 1023.

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Jurisdiction and State Responsibility 367 of (extraterritorial) enforcement jurisdiction in its own right,42 as well as a breach of the UN Charter43 and international human rights law.44 From a purely state-centric perspective, however, there is no continuing internationally wrongful act in the exercise of territorial enforcement jurisdiction. Once the state agents cross the border into their own territory with the abductee in custody, the exercise of plenary territorial enforcement jurisdiction is lawful from the perspective of international law. Even the breach of human rights occasioned by the abduction, which results in part from the absence of a legal framework governing the exercise of power by state A against the abductee in state B’s territory, might also be understood to cease on crossing the border if we adopt a territorially compartmentalized state-centric perspective. This is because states are entitled, as a matter of human rights law, to detain individuals within their own territory for the purposes of prosecution pursuant to, for instance, a lawfully issued arrest warrant. As a result, the prior unlawful exercise of enforcement jurisdiction (in the form of the abduction in state B’s territory and amounting to a breach of both the prohibition on extraterritorial enforcement jurisdiction and human rights law) does not colour or taint the subsequent exercise of enforcement jurisdiction within state A’s own territory (which is lawful purely in virtue of the accused’s physical presence and the duly issued arrest warrant applicable in state A’s territory). The principle of male captus bene detentus, admittedly a domestic legal doctrine, clearly captures this state-centric perspective. It is premised on the territorial compartmentalization of lawful exercises of jurisdiction and only addresses the plenary right to exercise territorial enforcement jurisdiction from a factual perspective—in particular the fact of the accused’s physical presence. On the basis of this doctrine, domestic courts do not ‘look behind’ the accused’s physical presence in the jurisdiction exercising state’s territory and the doctrine therefore does not (and cannot) speak to the abducting state’s responsibility (or the consequences thereof) for (i) any unlawful exercise of extraterritorial enforcement jurisdiction in state B’s territory,45 (ii) any breach of extradition law occasioned by the abduction (in cases where an extradition treaty between state A and state B is understood to be the exclusive means for securing the presence of an 42 Extraterritorial abductions have long been viewed as an internationally wrongful exercise of enforcement jurisdiction. See Hersch Lauterpacht (ed.), Oppenheim’s International Law, 8th edn (London: Longman, 1955), 295. 43 Following Israel’s abduction of Eichmann from Argentina in 1960, the UN Security Council adopted a resolution which considered that ‘the violation of the sovereignty of a Member State is incompatible with the Charter of the United Nations’. UNSCR 138, 23 June 1960. 44 The HRC, applying the ICCPR, held that the abduction of a Uruguayan national from Argentina (by Uruguayan security forces) amounted to an arbitrary arrest and detention in breach of Art. 9(1) of the Covenant (applying the ICCPR extraterritorially on the basis of a personal approach to ‘jurisdiction’ as the trigger for human rights obligations). HRC, Sergio Euben Lopez Burgos v Uruguay (29 July 1981), UN Doc. A/36/40 (1981) 176, paras. 12–14. See also HRC, Domukovsky and Others v Georgia (29 May 1998), UN Doc. CCPR/C/62/D/623/1995, para. 18.2; Brief of the Government of Canada as Amicus Curiae in Support of Respondent (Alvarez-Machain) (1992) 31 ILM 921, 926. See further discussion of Öcalan v Turkey, App. No. 46221/99, ECtHR (GC), Judgment of 12 May 2005, nn. 55–9 and accompanying text below below. 45 See nn. 42–3.

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368 Kimberley N. Trapp accused from state B),46 or (iii) any breach of human rights occasioned by the accused’s arrest in foreign territory in the absence of lawful authority.47 This approach is unsurprisingly reflected in domestic court decisions which pre-date the UN Charter, the significant increase in criminal law cooperation and extradition treaties, and modern human rights law. In cases where the accused’s presence in state A’s territory was secured from state’s B’s territory through some form of extra-legal process, domestic courts in the pre-UN Charter and pre-human rights era consistently held that it is not the role of courts which have jurisdiction in virtue of territorial presence to enquire into the permissibility of the legal process by way of which arrest was effectuated in foreign territory.48 This approach to territorial enforcement jurisdiction predicated on an abduction, however, is also reflected in some modern decisions. Most famously, in 1992 the US Supreme Court held that its courts could exercise jurisdiction over a Mexican national who was unlawfully abducted from Mexican territory (which abduction was purely for the purposes of his prosecution in the United States).49 46 See the US Supreme Court’s decision in Alvarez-Machain, 504 US 655 (1992) on this point, in which the Court held that an extradition treaty did not establish an exclusive means for securing the accused’s presence, and that extra-extradition methods were therefore not implicitly prohibited. See also the ECtHR decision in Öcalan v Turkey (n. 44). The ECtHR did not consider that cooperation between states, outside an existing extradition framework, implicates Art. 5 rights (Öcalan v Turkey (n. 44), paras. 85 and 90). Albeit from the perspective of international human rights law (rather than from the perspective of extradition law), the ECtHR implicitly accepts the US Supreme Court’s determination in Alvarez-Machain that the existence of an extradition treaty between two states does not necessarily ‘cover the field’ of transfer options which are ‘prescribed by law’. The ECtHR decision on this point is limited, however, to the question of a breach of the right to liberty. The ECtHR nevertheless expressly rejects the conclusion of the US Supreme Court that abduction is an available transfer option which can ground the jurisdiction of the abducting state’s courts (see n. 57), and the decision is plainly a rejection of male captus bene detentus insofar as human rights law is concerned. To opposite effect in respect of whether extradition treaties ‘cover the field’ of available transfer options between the host and prosecuting states (also amounting to a rejection of the male captus bene detentus doctrine on different grounds), see R v Hartley [1978] 2 NZLR 199, 216–17. Woodhouse J considered the extradition framework between New Zealand and Australia to be the exclusive means for securing the territorial presence of an accused and refused to exercise jurisdiction despite the accused’s presence on the basis that his presence was secured extra-legally. 47 See n. 44. 48 See e.g. ex parte Susannah Scott (1829) 9 B&C 446; Ker v Illinois, 119 US 436 (1888); Rex v Officer Commanding Depot Battalion, RASC, Colchester, ex parte Elliott [1949] 1 All ER 373; Sinclair v HM Advocate (1890) 17 R(J) 38. For an early critique of this approach, on the basis that a state without jurisdiction to seize is a state without jurisdiction tout court, and that it is artificial to legally compartmentalize the various exercises of jurisdiction leading to and including the prosecution, see E. D. Dickinson, ‘Jurisdiction Following Seizure or Arrest in Violation of International Law’, American Journal of International Law 28 (1934): 231, 236–7. 49 United States v Alvarez-Machain (n. 46). See also Stocké v Germany, App. No. 11755/85, Eur. Comm. HR, Report of the Commission, 12 October 1989, para. 162 (quoting the German Federal Constitutional Court as having found ‘no general rule in international law according to which prosecution of a person was barred in a State to whose territory the person concerned had been taken in violation of the territor ial sovereignty of another State’); Cour de Cassation, Re Argoud (1965) 45 ILR 90 (involving a private kidnapping, but in which the Court holds, in obiter, that the accused has no standing to plead breaches of international law committed during his arrest). The Israel Supreme Court’s decision in Eichmann, 36 ILR 277 (1962) is also understood in male captus bene detentus terms, but in fact Israel tendered an official apology for its violation of Argentinian territorial sovereignty, and Argentina waived any further

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Jurisdiction and State Responsibility 369 Whether the doctrine, as applied by domestic courts, is consistent with post-Charter international law was certainly contested in the last decades of the twentieth century.50 It was, of course, accepted that the extraterritorial exercise of enforcement jurisdiction (in the form of the abduction) was unlawful. The contested question was the lawfulness, as a matter of international law, of the subsequent exercise of territorial enforcement jurisdiction against the abductee. For instance, states protesting the US Supreme Court’s decision in Alvarez-Machain tended to focus on the unlawfulness of the abduction, whether as a breach of state sovereignty or a breach of bilateral extradition treaties.51 And Latin American states considered the question of the lawfulness of the subsequent exercise of territorial enforcement jurisdiction against an abductee to be open enough as to propose an Advisory Opinion by the International Court of Justice (ICJ) on the issue.52 rights in respect of the prosecution (see L. Henkin, International Law (Rochester: West Publishing Co., 1993), 1085). The effectiveness of Argentina’s waiver does however situate this case firmly in the ‘statecentric’ category in respect of circumstances precluding wrongfulness as discussed in Section III.3.b of this chapter. The nature of the crimes with which Eichmann was charged also complicates the precedential value of this case, as even assuming that states should be prohibited from exercising territorial enforcement jurisdiction in the case of unlawful extraterritorial abductions, there is some support for an exception in the case of international crimes. See e.g. Mann (n. 40), 414; R. Higgins, Problems and Process (Oxford University Press, 1994), 72; M. Halberstam, ‘In Defense of the Supreme Court Decision in Alvarez-MaChain’, American Journal of International Law 86 (1992): 736, 744. See also Prosecutor v Dragan Nikoli, IT-95-2, ICTY, Decision on Interlocutory Appeal on Legality of Arrest, paras. 29–30. 50 See I. Brownlie, Principles of Public International Law, 4th edn (Oxford University Press, 1990), 317; Mann (n. 40), 412–14. L. Henkin, ‘International Law: Politics, Values and Functions’, Recueil des Cours 216 (1989 IV): 9, 305; M. N. Shaw, International Law, 2nd edn (Cambridge: Grotius, 1986), 361; M. J. Glennon, ‘State-Sponsored Abduction: A Comment on United States v. Alvarez-Machain’, American Journal of International Law 86 (1992): 736, 750; and a series of articles by A. F. Lowenfeld (in American Journal of International Law 84 (1990): 444; American Journal of International Law 84 (1990): 712; American Journal of International Law 85 (1991): 655. 51 See e.g. Statements by American States to the US Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, 102d Cong., 2d Sess. 267 (1992), 110–14. See also Brief of the Government of Canada (Alvarez-Machain) (n. 44), arguing that abduction is generally understood to be a breach of territorial sovereignty and extradition arrangements, and addressing the subsequent pros ecution of the abductee in terms of (i) whether the host state protested and (ii) reparations owed for the breach of the host state’s territorial integrity and/or extradition treaties (rather than treating the prosecution as a wrong in its own right). To similar effect, see OAS, Legal Opinion of the Inter-American Juridical Committee on the Decision of the Supreme Court of the United States of America (AlvarezMachain) (15 August, 1992), in Criminal Law Forum 4 (1993): 119, paras. 9–11: the Committee is clear on the internationally wrongful nature of the breach of Mexico’s territorial integrity (in the form of the abduction), but does not address the lawfulness of the United States’ subsequent exercise of territorial enforcement jurisdiction against Alvarez-Machain on its own terms, treating the question instead as one of reparations (restitution in particular) for the breach of Mexico’s territorial sovereignty. See Section III.3.c of this chapter for a further discussion of remedies. 52 See Request for an Advisory Opinion from the International Court of Justice (by way of letter from Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Portugal, Spain, Uruguay, and Venezuela to the United Nations addressed to the Secretary-General, requesting that the item be placed on the Sixth Committee’s agenda), UN Doc. A/47/249 (17 November 1992), Annex). See further statements to the Sixth Committee on the issue, UN Doc. A/C.6/48/SR.34 (1 February 1994), para. 3 (Brazil), paras. 9–10 (Mexico). The Sixth Committee deferred its decision on requesting an Advisory Opinion

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370 Kimberley N. Trapp From a human-centric approach to jurisdiction, the exercise of enforcement jurisdiction over an abductee within the jurisdiction exercising state’s own territory would itself be unlawful, even though the factual trigger for the exercise of territorial jurisdiction in the form of the abductee’s physical presence is met. This is because the exercise of enforcement jurisdiction over an abductee is understood in terms of the exercise of power against an individual (and evaluated holistically from arrest to territorial detention), rather than in territorially compartmentalized terms centred around state interests in territorial sovereignty and integrity. There are decisions by domestic courts (refusing to exercise territorial enforcement jurisdiction where it is predicated on an unlawful extraterritorial abduction) which in some respects support this perspective. While they rely on the discretion of courts to protect the administration of justice, and doctrines related to the rule of law and ‘clean hands’,53 the basis of the reasoning is inconsistent with the state-centric perspective: the wrongfulness of the exercise of enforcement jurisdiction (by way of which the accused’s presence is secured) is not understood to be interrupted, or wiped out, by stepping over a border.54 Instead, state power against an individual is evaluated from beginning to end, blind to the borders across which it is exercised. from the ICJ on the matter for several years (see UN Doc. A/C.6/47/L.18 (23 November 1992); UN Doc. A/C.6/48/L.15 (23 November 1993); UN Doc. A/C.6/49/SR.39 (23 November 1994), paras. 60–2) before the item simply dropped off its agenda. Noting the contested nature of the issue, see further Germany’s arguments before the Eur. Comm. HR, Stocké v Germany (n. 49), discussed further in n. 77 and accompanying text : ‘It is true that there are isolated judgments and scholarly opinions that deny the abducting state—in a case where there has been an abduction contrary to international law—the right to conduct criminal proceedings against the person who has been abducted. However, this practice is not sufficiently widespread to be considered either as an established international practice restricting State jurisdiction or as a rule requiring the termination of criminal proceedings against a person abducted in a manner contrary to international law.’ As the Eur. Comm. HR held that the abduction was not attributable to Germany, and there was no collusion between the abductor and the German authorities, it did not decide whether the subsequent exercise of territorial enforcement jurisdiction by Germany was itself lawful. 53 See S v Ebrahim, 1991 (2) SA 553 (‘[t]he individual must be protected from unlawful arrest and abduction, jurisdictional boundaries must not be exceeded, international legal sovereignty must be respected, the legal process must be fair towards those affected by it, and the misuse thereof must be avoided in order to protect and promote the dignity and integrity of the judicial system. This applies equally to the State. When the State is itself party to a dispute, as for example in criminal cases, it must come to court “with clean hands” as it were. When the State is itself involved in an abduction across international borders as in the instant case, its hands cannot be said to be clean.’); United States v Toscanino, 500 F 2d 267 (15 May, 1974), para. 36 (in which the Court, holding that breach of the accused’s right to due process and of the host State’s UN Charter and OAS Charter rights to territorial sovereignty divested US courts of jurisdiction, considered itself to be relying on its ‘supervisory power over the administration of criminal justice’, which power may be legitimately used to ‘prevent district courts from themselves becoming “accomplices in willful disobedience of law” ’). See further R v Hartley (n. 46) (in which Woodhouse J refused to exercise territorial jurisdiction predicated on an abduction on the basis of ‘the whole concept of freedom in society’); Horseferry Road Magistrates Court, ex parte Bennett (No. 1) [1993] UKHL 10 (Lords Griffiths, Bridge of Harwich, Lowry and Slynn of Hadley); State v Beahan, 1992 (1) SACR 307 (A). 54 There is also support, in the private international law context, for the idea that a state’s courts cannot exercise jurisdiction over an individual (which jurisdiction is grounded on the individual’s presence in the jurisdiction exercising state’s territory) if that individual had been fraudulently induced to enter the jurisdiction exercising state’s territory. See e.g. Colt Industries Inc. v Sarlie [1966] 1 WLR 440 (QB).

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Jurisdiction and State Responsibility 371 Indeed, modern human rights law might be understood as demanding a rejection of the state-centric perspective. Consider the ECtHR decision in Öcalan v Turkey. Öcalan was arrested by Turkish officials in Kenyan territory with the assistance of Kenyan officials. The issue before the Court was whether the arrest, which resulted from informal cooperation between Kenyan officials and Turkish officials in Kenyan territory, was extra-legal so as to amount to a breach of Öcalan’s Article 5 European Convention on Human Rights (ECHR) right to liberty.55 The Court considers the Article 5 ECHR right to liberty to protect individuals from arbitrariness, which covers not only a right of ‘liberty’ but also a ‘right to security of person’.56 And the Court finds (albeit in obiter) that ‘an arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person concerned’s individual rights to security under Article 5(1)’.57 The analysis centres around whether the exercise of enforcement jurisdiction over the accused, which may well span from state B’s territory to state A’s territory, is ‘prescribed by law’, as required for compliance with the Article 5 ECHR right to liberty. In the ECtHR’s estimation, operating from a human rights perspective and with a view to the international rule of law, this cannot be the case in the event of an extraterritorial abduction in breach of the host state’s sovereignty, international law,58 and the accused’s right to physical integrity. Of interest, human rights law as applied in this case does not render an otherwise lawful exercise of territorial enforcement jurisdiction (which is understood in territorially compartmentalized terms) unlawful, as would for instance the law of immunities.59 Rather, under the ECtHR’s approach in Öcalan v Turkey, human rights law requires that the exercise of enforcement jurisdiction against an accused (and whether it is ‘prescribed by law’ and ‘lawful’) be evaluated as a whole, uninterrupted by the crossing of an otherwise jurisdictionally relevant border. The human-centric (and holistic) approach to enforcement jurisdiction, however, is not a logically necessary result of injecting human rights law into questions about the lawfulness of enforcement jurisdiction, even if it is the approach adopted by the ECtHR in Öcalan. One could adopt a state-centric and territorially compartmentalized approach to the right to liberty in evaluating the lawfulness of a territorial exercise of enforcement jurisdiction against an abducted accused. Assuming a lawful warrant for the accused abductee’s arrest has been issued in state A, crossing the border into state A with the accused abductee engages that territorial legal framework governing The court’s reasoning in this case hangs on the voluntary nature of the defendant’s presence—focusing attention on personal autonomy (framed in terms of procedural fairness and consent) and rejecting a purely territorial approach focused on a state’s entitlement to apply its regulatory framework to persons within its territory. While such approaches have developed in the context of private dispute settlement, they nevertheless have their reflection in public international law in the form of human rights. See Stocké v Germany (n. 49), para. 167 and discussion regarding Öcalan v Turkey in n. 55. 55 ECtHR, Öcalan v Turkey (n. 44), paras. 73–82. 56 Ibid., para. 83. 57 Ibid., para. 85 58 The interpretation of ‘prescribed by law’ as drawing on the broader international law framework is a common theme in the approach to human rights protection in extraterritorial cases under the ECHR. See e.g. Serdar Mohammed v Ministry of Defence [2017] UKSC 2. 59 See n. 39.

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372 Kimberley N. Trapp arrest—rendering the detention ‘prescribed by law’ within state A’s territory.60 If we focus on the human rights breach deriving from the absence of a legal framework regulating an exercise of power by state A against the abductee in state B’s territory, and proceed from a state-centric and territorially compartmentalized approach, the extraterritorial abduction amounts to an unlawful restriction on liberty on the basis that it was not ‘prescribed by law’ in state B’s territory (which would be subject to a remedy, as discussed in Section III.3.c of this chapter), but the territorial exercise of enforcement jurisdiction in state A’s territory would be ‘prescribed by law’ on the basis of the duly issued arrest warrant and therefore lawful.

III.3. State Responsibility for Excessive Enforcement Jurisdiction While the ECtHR’s decision in Öcalan supports a human-centric approach to the exercise of territorial enforcement jurisdiction against an abducted accused, the state-centric and territorially compartmentalized approach certainly persists61—evidence of the incomplete (but constantly progressing) nature of relevant paradigm shifts in international law discussed in Section I of this chapter. In this section, the secondary rules of state responsibility—as applied to an exercise of territorial enforcement jurisdiction predicated on an extraterritorial abduction—are considered, with a view to further exploring the implications of a state-centric or human-centric approach to enforcement jurisdiction.

III.3.a. The Continuing Character of the Breach and the Secondary Obligation of Cessation In Article 14 ARSIWA, the ILC draws a distinction between a breach of an international obligation by an act that is continuing (Article 14(2) ARSIWA), and a breach of an international obligation by an act that does not have a continuing character even if its effects continue (Article 14(1) ARSIWA). This is a potentially important distinction insofar as a continuing breach gives rise to a secondary obligation to cease the wrongful act.62 In respect of the enforcement jurisdiction case study in Section III.2 of this chapter, if state A’s exercise of territorial enforcement jurisdiction against the abductee is treated as a continuation of its unlawful exercise of extraterritorial enforcement jurisdiction in state B’s territory, then the obligation of cessation would require the courts of state A to decline to proceed with the prosecution as a matter of the secondary rules of international law.

60 See Germany’s argument in respect of Stocké v Germany (n. 49)—discussed in n. 78 and related text. 61 See e.g. Crawford (n. 4), 483. Crawford frames the right to prosecute an accused victim of state abduction as a question of domestic law rather than international law, even though in footnote 205 he acknowledges that at least the ECHR may have a bearing on the issue. 62 Art. 30 ARSIWA and Commentaries (n. 15).

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Jurisdiction and State Responsibility 373 Whether a breach is considered to be continuing depends to a certain extent on whether the focus is on the act which constitutes the breach or on the legal framework (in particular the primary obligation) which legally qualifies the act. In respect of the case study, a focus on the act (which is an exercise of power over an individual) suggests that an exercise of enforcement jurisdiction which begins unlawfully continues until the accused’s release. A focus on the act engages the human-centric and holistic perspective. As a result, the exercise of territorial enforcement jurisdiction against an abductee would be wrongful both as a matter of the primary rules (as discussed in Section III.2 of this chapter), and as a matter of the secondary rules of state responsibility (insofar as the predicate breach of the host state’s territorial integrity occasioned by the abduction ‘continues’ even once state A’s agents cross into their own territory). A focus on the legal framework, however, introduces the possibility of characterizing the act in territorially compartmentalized terms. This is certainly the case in respect of the law of enforcement jurisdiction, and is even possible if the primary rules under consideration are human rights obligations, breach of which is occasioned by the extraterritorial abduction (as discussed in Section III.2 of this chapter). This focus would result in the subsequent exercise of territorial enforcement jurisdiction against an abductee being lawful under both the primary rules of international law, and in respect of the secondary rules of state responsibility (because the predicate breach would not be characterized as ‘continuing’). The ILC characterizes the question of whether an act is continuing or not as one that depends both on the primary rule and the act in question.63 There is, therefore, little in the ILC Commentary on continuing breaches to assist in navigating between the statecentric and human-centric approaches to the exercise of territorial enforcement jurisdiction against an abductee (either as a matter of the primary or secondary rules of international law).

III.3.b. Circumstances Precluding Wrongfulness Also of interest in considering the implications of the state-centric and human-centric approaches to enforcement jurisdiction are circumstances precluding wrongfulness— in particular their availability and the scope of wrongfulness preclusion. The wrongfulness of an excessive exercise of enforcement jurisdiction might be precluded on the basis of one of two circumstances recognized in the ILC’s Articles on State Responsibility: consent and countermeasures. III.3.b.i. Consent Insofar as the case study on enforcement jurisdiction (Section III.2 of this chapter) is concerned, the extent to which consent might amount to a circumstance precluding wrongfulness64 depends in part on when the consent is given, and in part (if consent is given after the fact), what perspective on enforcement jurisdiction one adopts.

63 Ibid., Art. 14, para. 3.

64 Ibid. Art. 20.

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374 Kimberley N. Trapp For instance, state B’s consent to state A’s agents acting in a criminal law enforcement capacity in its territory, by way of which an accused is transferred from state B’s territory to state A, would certainly render state A’s exercise of extraterritorial enforcement jurisdiction lawful.65 Indeed, such consent would mean that the arrest could not qualify as an ‘abduction’ at all, and would instead qualify as an alternative to extradition arrangements (even if informal) consented to by state B’s executive.66 State B’s consent, however, might be given after the fact, which is to say—following the unlawful abduction of an accused in state B’s territory (in breach of its territorial integrity)—state B might nevertheless consent to (or acquiesce in) the prosecution of the abductee by state A.67 For instance, the Harvard Draft Convention on Jurisdiction with Respect to Crime proposed that ‘[i]n exercising jurisdiction under this Convention, no State shall prosecute or punish any person who has been brought within its territory or a place subject to its authority by recourse to measures in violation of international law or international convention without first obtaining the consent of the State or States whose rights have been violated by such measures’.68 The Draft, penned in 1935, very evidently does not address abduction as a breach of the abductee’s human rights, instead treating the matter purely on the inter-state plane.69 Its starting point is the breach of territorial integrity occasioned by the abduction70 and it vacillates between treating the subsequent exercise of territorial enforcement jurisdiction against an abductee as (i) a lex ferenda wrong (based on policy considerations of not supporting the predicate breach of territorial integrity)71 and (ii) prohibited on the basis that there is no territorial enforcement jurisdiction at all because ‘[t]he court is an arm of the nation and its jurisdiction can rise no higher, by virtue of process served within the territory, than the jurisdiction of

65 See ibid., para. 8. See further Harvard Draft Convention on Jurisdiction (n. 10), Commentary to Art. 16, 631. 66 See ECtHR, Öcalan v Turkey (n. 44), which accepts that such consent may amount to an irregular but nevertheless lawful surrender of the accused to the jurisdiction exercising state (insofar as human rights law is concerned). 67 In its Commentary, the ILC frames after the fact consent as a waiver or acquiescence, leading to a loss of right to invoke responsibility. See Arts. 20 and 45 ARSIWA and Commentaries (n. 15), para. 45. Whether we view the consent hereunder consideration as ‘after the fact’ (and therefore a waiver of the right to invoke responsibility and to a remedy) or as a circumstance precluding wrongfulness, however, depends on the perspective one adopts in respect of enforcement jurisdiction. Where a human-centric (and holistic) perspective is adopted, such that both the extraterritorial and territorial exercise of enforcement jurisdiction is characterized as wrongful, consent to prosecution is a circumstance precluding wrongfulness in respect of the wrongful exercise of territorial enforcement jurisdiction. If we adopt a state-centric and territorially compartmentalized perspective, so that only the exercise of extraterritorial enforcement jurisdiction in state B’s territory is wrongful, consent or acquiescence in the subsequent prosecution is by way of waiver of certain secondary rights to a remedy (in the form of restitution)—as discussed further in Section II.3.c of this chapter. 68 Harvard Draft Convention on Jurisdiction (n. 10), Art. 16 (emphasis added). 69 To similar effect, writing before the human rights revolution, Mann suggests that consent, whether given in advance or after the fact, fully addresses the international wrong committed. See Mann (n. 40), 410. 70 Harvard Draft Convention on Jurisdiction (n. 10), Commentary to Art. 16, 624. 71 Ibid., 623–4.

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Jurisdiction and State Responsibility 375 the nation which it represents’.72 This latter approach supports a human-centric perspective—insofar as this perspective requires that an exercise of enforcement jurisdiction be evaluated holistically (with initial extraterritorial unlawfulness colouring the exercise of enforcement jurisdiction in its entirety) rather than in territorially compartmentalized terms. Of particular interest, in 1935, the injured state’s consent would have ‘covered the field’ of ‘jurisdiction related’ wrongfulness—whether the exercise of territorial enforcement jurisdiction (predicated on the prior wrongful exercise of extraterritorial enforcement jurisdiction in the form of an abduction) is characterized as wrongful on a lex ferenda basis for policy reasons or ab initio resulting from a holistic approach to enforcement jurisdiction. But once we inject a robust appreciation of human rights into the legal calculus, and assuming we accept for present purposes the Harvard Draft’s suggestion of a holistic approach to enforcement jurisdiction, consent to prosecution by the host state from whose territory the accused is abducted could not preclude the wrongfulness of the breach of an obligation which is owed to the abductee73—even if it could still preclude the wrongfulness of the breach vis-à-vis the host state. If, however, the exercise of territorial enforcement jurisdiction is approached from a state-centric perspective, and evaluated in territorially compartmentalized terms, consent does not address the wrongfulness of the exercise of territorial enforcement jurisdiction—in that it is not wrongful (vis-à-vis the host state or the abductee). Consent is relevant purely in reference to waiving restitution as the appropriate remedy for the predicate breach of territorial sovereignty of the host state (in the form of the abduction), on the basis of which the abductee’s presence is secured.74 III.3.b.ii. Countermeasures Countermeasures are, of course, not an available circumstance precluding wrongfulness in respect of breaches of Article 2(4) of the UN Charter, or in respect of the breach of fundamental human rights75—and abducting individuals from abroad is most certainly both of those. To the extent that we adopt a holistic perspective, such that the exercise of territorial enforcement jurisdiction is wrongful (in that it is a continuation of the predicate unlawful exercise of extraterritorial enforcement jurisdiction in the form of the abduction—a breach of both Article 2(4) and fundamental human rights), countermeasures are simply not an available circumstance precluding wrongfulness. To the extent that we adopt a state-centric (and territorially compartmentalized) perspective 72 Ibid., 631. See also 624–5, 630. See also the work of the Rapporteur on the Harvard Draft Convention on Jurisdiction, in his private capacity, to precisely the same effect. Dickinson (n. 48). 73 See n. 28. 74 See e.g. Brief of the Government of Canada (Alvarez-Machain) (n. 44), summarizing the practice of at least Western states. The conclusion of such summary is that the territorial enforcement jurisdiction against an abductee can proceed or not, based purely on the consent (or acquiescence) of the state from whose territory the accused is abducted. Non-prosecution and return of the abductee is framed in terms of reparations (in particular restitution) owed to the host state. 75 Art. 50 ARSIWA and Commentaries (n. 15).

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376 Kimberley N. Trapp on enforcement jurisdiction, the subsequent exercise of territorial enforcement jurisdiction, in the form of the prosecution of the abducted accused, is not unlawful and, therefore, not in need of wrongfulness preclusion.

III.3.c. Remedies What are the appropriate remedies in respect of responsibility for internationally wrongful acts related to the prosecution of a person abducted from foreign territory? The state practice in respect of appropriate remedies is not entirely consistent, and what demands are made of jurisdiction exercising states will, of course, in some measure reflect the relationship between the abducting and host states. Having said that, the remedies calculus very evidently reflects the different perspectives on enforcement jurisdiction explored in Section II.2 of this chapter. To the extent that the prior and wrongful exercise of extraterritorial enforcement jurisdiction in the form of the abduction is approached from an inter-state (and territorially compartmentalized) perspective, the subsequent exercise of territorial enforcement jurisdiction against the abductee is not in fact wrongful as a matter of international law. This is assuming an arrest warrant has been issued for the abductee’s arrest in the jurisdiction exercising state’s territory (see discussion in Section III.2 of this chapter).76 The remedies for responsibility resulting from the breach of the host state’s territorial integrity, or the breach of extradition arrangements between the abducting and host state, will be entirely at the disposal of the host state—not the individual abductee. This was precisely the argument put forward by Germany before the European Commission on Human Rights, in respect of the Stocké v Germany case.77 Germany contested its involvement in and responsibility for the abduction of Mr Stocké from France to Germany, but nevertheless argued that ‘even assuming such a responsibility, the applicant was lawfully arrested in the Federal Republic of Germany within the meaning of Article 5 para. 1 (c) of the [European] Convention [on Human Rights]. His arrest was effected on the basis of a valid warrant of arrest. The applicant could not himself claim any violation of international law, and in particular of extradition treaties.’78 And some decades before, in respect of an abduction from Germany to France, the 76 The fact that the exercise of territorial enforcement jurisdiction is not wrongful from the perspective of international law does not, of course, mean that domestic courts are bound to proceed with the prosecution. As seen herein, domestic courts will often refuse to proceed with a prosecution predicated on an unlawful abduction in order to protect the integrity of the administration of justice. See n. 53 and associated discussion. 77 Stocké was fraudulently induced to return to Germany by a private party. The inducement was characterized in terms of an abduction, and he faced criminal prosecution for prior crimes as a result of his physical presence in German territory. At issue before the Commission was whether the private party was acting on behalf of Germany. Stocké v Germany (n. 49), paras. 89–91. The Commission held that the private party was not acting as an agent of Germany, but nevertheless considered the legal implications of attribution, as discussed later in this chapter. 78 Emphasis added. Stocké v Germany (n. 49), para. 159. The Commission did not address this argument, having held that ‘collusion between German authorities and [the kidnapper] in returning the applicant against his will from France has not been established’ (at para. 203).

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Jurisdiction and State Responsibility 377 French Cour de Cassation (Criminal Chamber) (4 June 1964) accepted precisely this argument.79 By way of reparation for the abducting state’s breach of the host state’s territorial integrity or the exclusivity of its extradition arrangements with the host state, it is accepted that restitution—in the form of the return of the abductee—is appropriate.80 For instance, in respect of the recent abduction of a Vietnamese refugee from German territory (allegedly) by Vietnamese agents, Germany first demanded the return of the abducted accused, focusing exclusively on the breach of its own rights in respect of the abduction.81 Germany later commuted its demand for reparation to one regarding an apology and guarantees of non-repetition.82 Together, Germany’s approach to reparations reflects a state-centric perspective, one which views the exercise of extraterritorial enforcement jurisdiction purely from the perspective of its own territorial sovereignty and rights. Such demands for restitution have to be carefully distinguished from any suggestion that the exercise of territorial enforcement jurisdiction is itself wrongful and should not proceed on that basis. They are to the same effect, but the demand for restitution of the abductee (or for an apology and guarantees of non-repetition), in response to the predicate breach of the host state’s territorial sovereignty or the exclusivity of extradition arrangements between the abducting and host state, views enforcement jurisdiction from the perspective of the state and the law of state responsibility. As far as the abductee is concerned, even accepting the state-centric perspective, there is still a breach of human rights law that calls for a remedy. This breach is in the form of the abduction in foreign territory (even if wrongfulness ceases once the abducting state agents cross into their own territory with the abductee in custody),83 and human rights monitoring bodies are clear that the remedy for the human rights breach lies with the abductee. For instance, in Stocké v Germany, the European Commission of Human Rights held that ‘[a]n arrest made by the authorities of one State on the territory of another State, without the prior consent of the State concerned, does not, therefore, only involve State responsibility vis-à-vis the other State, but also affects [the abductee’s] individual right to security under Article 5 para. 1 [ECHR]. The question whether or not the 79 The French Cour de Cassation held that ‘even accepting that Argoud had been abducted on the territory of the Federal Republic of Germany in violation of the rights of that country and of its sovereignty, it would be for the Government of the injured State alone to complain and demand reparation. The accused has no capacity to plead a contravention of the rules of public international law and could not claim to find in them a personal basis for immunity from judicial proceedings.’ In re Argoud (n. 49). 80 For instance, the Canadian government, in its amicus brief to the US Supreme Court in respect of the Alvarez-Machain case (n. 49), argued that ‘the understanding in international law [is] that abducted persons must be returned to a nation when it protests the infringement of its sovereignty’. Brief of the Government of Canada (Alvarez-Machain) (n. 44), 924. See also OAS, Legal Opinion of the InterAmerican Juridical Committee (n. 50), paras. 10–12, in which it was held that, ‘in upholding the jurisdiction of United States courts to try . . . Alvarez Machain, forcibly abducted from [Mexico], the United States is ignoring its obligation to return him to the country from whose jurisdiction he was abducted’. 81 Statement by Federal Foreign Office Spokesperson on German–Vietnamese relations, https://www. auswaertiges-amt.de/en/Newsroom/170802-vnm/291756. 82 See B. Nussberger and F.-J. Langmack, ‘A Cold War like Thriller in Summer: Icy Times between Vietnam and Germany’, EJIL:Talk!, 20 February 2018. 83 See n. 44 and accompanying text.

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378 Kimberley N. Trapp other State claims reparation for violation of its rights under international law is not relevant for the individual right under the Convention.’84 As to appropriate remedies, the Inter-American Commission on Human Rights has held that restitution is appropriate in cases of extraterritorial abduction. In its Lopez decision, the Commission held that Uruguay was under an obligation to release the abductee and to give him permission to leave Uruguay.85 The XVth International Congress of Penal Law (Rio de Janeiro, 1994) has similarly proposed that the victim of an abduction should have the right to be brought into the position which existed prior to the breach.86 The Congress proposed that such abductions should be recognized as a bar to exercising territorial enforcement jurisdiction—but relied principally on the secondary rules of state responsibility and the right to a remedy to support the proposed bar (as distinguished from arguing that the exercise of territorial enforcement jurisdiction was wrong in its own right). The human-centric (and holistic) perspective on enforcement jurisdiction would, of course, be to the same effect, but release of the abductee would be on the basis that the territorial exercise of enforcement jurisdiction is itself unlawful, rather than by way of remedy for the predicate unlawful exercise of extraterritorial enforcement jurisdiction (in breach of the abductee’s human rights and the host state’s territorial integrity or rights under an extradition treaty with the abducting state).

IV. Conclusions International law has very evidently moved far past its Westphalian origins. Modern inter national law addresses an ever-broadening range of interests, including those of the natural persons who are its ultimate subjects and those of the international community as a whole—both conceptualized in part through the lens of the rule of law and respect for the physical integrity and dignity of natural persons. These interests are of course reflected in the increasing pervasiveness of human rights discourse and in the growing body of international law which aims to ensure that state actors and non-state actors alike are held criminally responsible for threatening community values which protect international law’s ‘core’ constituency. These shifts in international law very evidently affect even the most ‘classic’ of international law subject areas—in the case at hand, jurisdiction. Nevertheless, the international legal system is still one in transition, and the ‘paradigm shift’ from a state centric to human-centric system is far from complete. This is evidenced in a number of different ways in respect of the law on jurisdiction. In particular, a system primarily concerned with human dignity and security might recognize universal jurisdiction 84 Stocké v Germany (n. 49), para. 167. 85 See HRC, Lopez Burgos v Uruguay (n. 44), 183, paras. 13–14. 86 International Congress of Penal Law (Rio de Janeiro, 4–10 September 1994), Section IV (The regionalization of international criminal law and the protection of human rights in international cooperative procedures in criminal matters), para. 19.

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Jurisdiction and State Responsibility 379 in respect of very serious transnational crimes which threaten the rule of law and international peace and security. Conceptions of prescriptive jurisdiction based on a particular understanding of a state’s relationship to its nationals, which preclude other states with capacity and opportunity from enforcing important community norms, may appear strangely outdated in this modern context of mass-migration. This of course assuming that states engaging in universal jurisdiction prosecutions are doing so in good faith and with a view to enforcing fundamental norms—an assumption which is admittedly challenging in an era of ‘fake news’ and increasing reprisals against political opponents. The exploration of prescriptive jurisdiction here, viewed through the prism of state responsibility, in some respects reflects the difficulties inherent in a system in flux—one moving towards a universalist approach to ‘no impunity’ for a certain class of crimes, but which has not quite shed its bilateralist treaty origins (resulting in principle-oflegality concerns which would not remain in the case of a clear recognition of universal jurisdiction in this regard). Insofar as enforcement jurisdiction is concerned, the international law on jurisdiction is again caught between two paradigms, although the writing may well be on the wall. Cases of territorial enforcement jurisdiction predicated on an unlawful extraterritorial abduction can—without conceptual incoherence—be viewed through either a state-centric or human-centric lens, to entirely different positive law effect (both in terms of the primary rules and secondary rules of state responsibility). The momentum of shifts in international law, however, should favour a human-centric approach—at least insofar as common crimes which do not threaten broader community values are concerned. The European Court of Human Rights has certainly suggested this will be its approach, even if states continue to address abductions from their own state-centric vantage point. This is of course not to accept ‘impunity’, particularly as victims’ rights to access to justice also need to be accounted for. It is to say, however, that states must secure the territorial presence of an accused through legal means, including extradition or formal cooperation with the state in whose territory the accused is residing. In respect of international crimes which threaten broader community values, the difficulty is not uniquely a question of deciding between a state-centric or human-centric paradigm (although it is also that), but is also a question of balancing the competing values of the international community as a whole. For instance, in its Prosecutor v Dragan Nikoli decision, the International Criminal Tribunal for the former Yugoslavia (ICTY) looks to balance respect for human rights of the accused and the territorial sovereignty of the state from whose territory the accused is abducted against the international community’s interest in the prosecution of individuals charged with serious international crimes. The ICTY held that jurisdiction should only be set aside in the case of egregious violations of the accused’s rights (and that abduction was not considered, in the circumstances of an international tribunal, to be an egregious breach).87 87 Prosecutor v Dragan Nikoli (n. 49), paras. 29–30. See also Öcalan v Turkey (n. 44), para. 88, in respect of the need to balance the ‘demands of the general interest of the community [in prosecution] and the requirements of the protection of the individual's fundamental rights’.

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380 Kimberley N. Trapp This decision was of course taken by a tribunal created precisely for the purposes of ensuring there is no impunity for international crimes committed in the former Yugoslavia, and it is therefore perhaps not surprising that these institutional blinkers resulted in prioritizing one set of community values over others. It might just as well have argued that weak respect for the rule of law, territorial sovereignty, and human security were the context within which the international crimes at issue were committed—and that prioritizing ‘no impunity’ over these other important community values might in fact contribute in the future to the very conditions which rendered the ICTY necessary in the first place. It remains to be seen how states and international tribunals will balance these interests in future, perfecting (or not) a human-centric approach to enforcement jurisdiction, but it is clear that in the modern era of international law this balance must also take into account the systemic consequences of failing to prioritize human rights, including those of persons who have committed international crimes.

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Chapter 16

En forci ng Cr i mi na l J u r isdiction i n th e Cl ou ds a n d I n ter nationa l L aw ’s En du r i ng Com mitm en t to Ter r itor i a lit y Stephen Allen

I. Introduction

382

II. Cyberspace and Territorial Jurisdiction

384

III. The Phenomenon of Cloud Computing

386

IV. The Problem of Loss of (Knowledge of) Location

390

III.1. The Notion of ‘the Cloud’ III.2. The Blurring of Online and Offline Criminality III.3. The Jurisdictional Impacts of Cloud Computing IV.1. Jurisdiction and the Budapest Convention IV.2. Article 32 of the Budapest Convention: The Narrow Territorial Exception IV.3. Extending Unilateral Trans-Border Access

386 387 388

390 391 393

V. Unilateral Trans-Border Activity Where Location of Data Is Known

397

VI. Recent Cases

401

V.1. Using Production Orders in Extraterritorial Settings VI.1. The Belgian Yahoo! Case (2013–15) VI.2. The Microsoft Warrant Case: Court of Appeals Decision VI.3. Microsoft Warrant Case in the Supreme Court

VII. Conclusion

397

401

402 404

409

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382 Stephen Allen

I. Introduction There has been a startling increase in the volume of electronic data, stored on connected computer networks in recent years. This data may constitute evidence in connection with the investigation, and prosecution of, criminal offences within national legal systems. Due to the phenomenon of Cloud Computing, data is now often stored in data-centres, which may be located in a different jurisdiction to the one in which the data owner (or possessor) is based. The issue of cross-border data storage has become a major problem for criminal justice authorities because, in general, the officials of one state cannot search, unilaterally, for data located within another state’s territory, with a view to accessing and retrieving it. This prohibition constitutes a specific manifestation of international law’s long-standing requirement that a state cannot enforce its jurisdiction in the territory of another state, in the absence of consent.1 Nevertheless, the dramatic growth in trans-border criminality has meant that this territorial limitation now risks undermining the extent to which individual states are able to satisfy their positive obligations to maintain the integrity of their criminal justice systems and to uphold the rule of law more generally. At this point, it may be useful to demonstrate the difficulties presented by the Cloud Computing model in the present context through a series of hypothetical examples. In the first scenario an individual, who resides in state A, has an email account which allows her to store data on a service provider’s Cloud network. However, for operational reasons, her uploaded data is stored in a data-centre located in state B. If the data owner engages in activity in state A in violation of its criminal law—and the activity generates incriminating data which is retained in state B—can the officials of state A (acting unilaterally and from within that state’s territory), access the data stored in state B and retrieve it for the purpose of their investigations? In a second scenario, would the position be any different if the data owner in question is based in state B instead (assuming the service provider is registered in State A in both scenarios)? And, in a final scenario, if state A’s officials understand that the sought-after data is stored in a datacentre situated in an extraterritorial setting, but they do not know its exact whereabouts, can they undertake a unilateral remote search for the data through the service provider’s Cloud network (again assuming that it is registered in state A)? The possible answers to each of these scenarios will depend on a range of factors which involve materially different conceptions of the exercise of enforcement jurisdiction and, in particular, how the notions of territoriality and extraterritoriality may be interpreted in specific situations. Will the investigating state be acting within its own jurisdiction if its officials compel an individual, present in its territory, to hand over data 1 SS Lotus (France v Turkey) [1927] PCIJ Series A, No. 10, 18. The International Law Commission (ILC) has specifically drawn attention to the unlawfulness of public officials conducting criminal investigations in another state’s territory: Report of the International Law Commission (2006), Annex V, paras. 22, 526.

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Enforcing Criminal Jurisdiction 383 which is stored in a third state, or does this exercise of public authority amount to an instance of extraterritorial enforcement jurisdiction? Alternatively, if the officials of the investigating state demand that a service provider (established in its territory) turn over data belonging to an individual who lives in a third state—with the data in question being stored on a server in that state—does this amount to a lawful exercise of territorial enforcement jurisdiction or to an unlawful instance of extraterritorial jurisdiction by the investigating state? And, finally, if the geographical location of the sought-after data remains unknown, how can the orthodox approach to enforcement jurisdiction retain any value for regulatory purposes? This chapter explores these issues. The Cybercrime Committee, which is responsible for monitoring the Council of Europe’s 2001 Cybercrime (Budapest) Convention,2 and individual states have tried to overcome the difficulties associated with unilateral trans-border activity in the criminal context. Nevertheless, this chapter argues that they have consistently under-estimated international law’s enduring commitment to a territorial conception of enforcement jurisdiction. In particular, their reform proposals have not paid enough attention to jurisprudential developments in the fields of extraterritorial jurisdiction and state responsibility and their failure to appreciate the applicable international legal doctrine has, potentially, serious consequences for the international legal order in general. Against this background, the chapter examines the key proposals which have been advanced by the Cybercrime Committee in order to illustrate the ways in which the Committee has sought to address the challenges of unilateral trans-border activity in connection with the conduct of criminal investigations and to consider their viability from an international legal perspective, insofar as jurisdictional considerations are engaged. In taking such an approach, I am not trying to advocate in favour of the status quo. Clearly, international law needs to find ways of responding to the borderless character of criminal activity in the digital age, but such an ambitious objective is beyond the scope of this chapter. Instead, this chapter seeks to draw attention to the consequences, for states and the inter-state system, of certain choices which are currently being mooted at the global level. To this end, in addition to considering the proposals developed by the Cybercrime Committee, this chapter pays particular attention to two significant cases— the Belgian Supreme Court’s 2015 decision in the Yahoo! case;3 and the Microsoft Warrant case, which was being considered by the US Supreme Court when Congress intervened by enacting the ‘CLOUD’ Act 2018.4 These cases have prompted judges and lawyers to contemplate the jurisdictional implications of cross-border criminality for the investigation, and prosecution, of criminal offences and the way in which municipal legal systems and international law interact in such situations. Consequently, it is clear that these sites of action have considerable explanatory resonance irrespective of the 2 The Council of Europe’s Cybercrime (Budapest) Convention (2001) CETS 185, has been ratified by fifty-five states. 3 The Yahoo!, Belgian Court of Cassation, Judgment, 1 December 2015, Case No. P13.2082.N/1. 4 United States v Microsoft Corp., Case No. 17-2 (2018) (the ‘Microsoft Warrant case’). The Clarifying Lawful Overseas Use of Data (CLOUD) Act was enacted on 23 March 2018. See the Supreme Court’s judgment, 17 April 2018: https://www.supremecourt.gov/docket/docketfiles/html/public/17-2.html.

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384 Stephen Allen manner in which they were dealt with by the courts and legislatures involved. They will, therefore, by treated more in the way of ‘thought experiments’ than compelling precedents for the present purposes.

II. Cyberspace and Territorial Jurisdiction As noted, a state cannot enforce its jurisdiction within the territory of another state without its consent.5 The traditional approach to enforcement jurisdiction is underpinned by the principles of territoriality, non-intervention, and state consent,6 and it represents a clear manifestation of sovereign authority.7 But despite the strength of the orthodox position, in recent times, institutional actors have made a concerted effort to overcome the practical difficulties that Cloud Computing, and the internet more generally, present for the exercise of state jurisdiction in ways that are, seemingly, in conformity with international law. Many of these attempts at reform focus on the regulatory challenges which flow from the ubiquitous effects of online activity and the sheer scale of conduct which the technological gains of recent years have facilitated.8 As a result, many of the leading scholars have been preoccupied with the prescriptive component of the extraterritorial claims made by states and the often dramatic occasions when their judicial authorities have followed through on them via the exercise of adjudicative jurisdiction. But while the challenges presented by the internet, and the phenomenon of Cloud Computing in particular, have created a novel problem, it is important to appreciate that international law has long maintained a flexible attitude to the exercise of prescriptive jurisdiction and that, by and large, its generous approach to the allocation of jurisdiction has been broadly successful.9 5 This classical position was fully endorsed in the Lotus judgment (n. 1), 18, 19. 6 See the Island of Palmas case (1928) 2 RIAA 829. Regarding the principle of non-intervention, see Art. 2(7) UN Charter and the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UN General Assembly Resolution 2625(XXV), 24 October 1970. 7 See James Crawford, Brownlie’s Principles of Public International Law, 8th edn (Oxford University Press, 2012), 456, 479. 8 See Michael A. Geist, ‘Is There a There There? Toward Greater Certainty for Internet Jurisdiction’, Berkeley Technology Law Journal 16 (2001): 1345; Uta Kohl, Jurisdiction and the Internet (Oxford University Press, 2007); Chris Reed, Making Laws For Cyberspace (Oxford University Press, 2012); Andrew Murray, ‘The Uses and Abuses of Cyberspace: Coming to Grips with the Present Dangers, in Antonio Cassese (ed.) Realizing Utopia: The Future of International Law (Oxford University Press, 2012), 496. Paul Schiff Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (New York: Cambridge University Press, 2012). 9 See Bruno Simma and Andreas Müller, ‘The Exercise and Limits to Jurisdiction’, in James Crawford and Marti Koskennemi (eds.), The Cambridge Companion to International Law (Cambridge University Press, 2012), 134.

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Enforcing Criminal Jurisdiction 385 To be sure, there are considerable difficulties with the exercise of prescriptive j urisdiction in extraterritorial settings and it is not my intention to minimize them. But it is undeniable that scholars, practitioners, and institutional actors have come up with plausible solutions to many of the challenges arising from conflicting and excessive jurisdictional claims. However, there is a stark difference in the way that international law has sought to govern the exercise of enforcement jurisdiction. Indeed, its historical approach has been characterized by a firm commitment to the territoriality principle. While the Lotus decision has been the subject of much criticism in recent years,10 the ruling of the Permanent Court of International Justice (PCIJ) on the nature and scope of enforcement jurisdiction has been consistently followed down the years without serious debate.11 When viewed against the backdrop of other core tenets of classical international law—territorial sovereignty, non-intervention, and state consent—an inflexible territorial conception of enforcement jurisdiction seems to be a good fit, from a systemic perspective. However, the problems associated with online activity and remote data storage, especially in the context of criminality, have prompted institutional actors to reconsider the viability of maintaining a territorial conception of enforcement jurisdiction in digital settings and, especially, in Cloud environments. Mutual Legal Assistance Treaties (MLATs) represent the traditional way in which states have sought to regulate cases of cross-border criminality.12 This approach has the distinct advantage of conforming to the consent-based requirements demanded by international law, when enforcement actions are carried out in the territory of another state. However, MLATs have been widely criticized for not being fit for purpose.13 Specifically, they have been condemned for being unwieldy, slow, and inefficient, in sharp contrast to data which can be moved, hidden, changed, or deleted i nstantaneously. In addition, it is apparent that such arrangements are incapable of addressing the so called ‘loss of location’ problem as they presuppose the existence of established legal processes between identifiable states who have given their consent for this reason.14 10 E.g. see Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84(1) (2014): 187, 192–4. In addition, the judgment produced a fair amount of controversy when it was delivered. See e.g. Hersch Lauterpacht, The Function of the Law in the International Community (Cambridge University Press, 2011 [1933]), 102–4. 11 This has been noted by several scholars in recent years. See Kohl (n. 8), 200; Cedric Ryngaert, Jurisdiction in International Law, 2nd edn (Oxford University Press, 2015), 9; and Mills (n. 10), 195. 12 This approach constitutes the principal means of resolving the jurisdictional problems at the level of enforcement in the Budapest Convention. See e.g. Agreement on Mutual Legal Assistance, Between the USA and the European Union (2003), OJ 34 (2006); and the Treaty Between the USA and Ireland on Mutual Legal Assistance in Criminal Matters (2001), Treaty Doc. No. 107-9 (2002). 13 See Bert-Jaap Koops and Morag Goodwin, ‘Cyberspace, the Cloud and Cross-Border Criminal Investigation: The Limits and Possibilities of International Law’, Tilburg Law School Research Paper No. 5/2016, December 2014, 26–7. 14 The loss of location problem refers to the great difficulty of establishing the whereabouts of data stored on remote computer networks in many cases for technological reasons. This challenge will be examined in detail in Section IV of this chapter. Establishing the location of data is significant because the regulatory system which allocates jurisdiction, and thus authority, is based on territorial determinants.

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386 Stephen Allen However, it has been widely acknowledged that the territorial model cannot respond to the challenges posed by the sheer volume of cross-border criminality which has been, inadvertently, unleashed by the internet, and by the Cloud Computing model becoming the preferred means of data storage in contemporary computing practice. Indeed, the inability of the orthodox approach to cope with the huge amount of remotely stored data which is relevant to the investigation of criminal offences calls into question the capacity of a state to satisfy its core positive obligation of maintaining the integrity of its criminal justice system, a charge that clearly justifies a thorough re-examination of the value of adhering to a territorial conception of enforcement jurisdiction. In the circumstances, the Cybercrime Committee and other institutional actors have advanced cogent proposals in an effort to find new and innovative ways of moving beyond the traditional approach to enforcement. Certain of these proposals will be examined in the following sections, but first it is worth explaining the phenomenon of Cloud Computing and saying something about the environment within which it operates.

III. The Phenomenon of Cloud Computing III.1. The Notion of ‘the Cloud’ In Riley v California, the US Supreme Court described Cloud Computing as ‘the c apacity of internet-connected devices to display data stored on remote servers rather than on the device itself ’.15 As previously noted, recent technological developments have introduced profound changes to the manner in which computing services are organized, including the way that data is stored. Consequently, a considerable amount of personal data is now stored, remotely, in data-centres. Cloud Computing services may take a number of different forms, depending on the requirements of the user;16 and they offer clear advantages to users and service providers alike. For users, Cloud Computing offers flexible, location-independent access to computing resources while enabling service providers to pool their computer resources and to allocate them swiftly in response to user demand.17 But while Cloud Computing is often viewed as an activity which occurs in a virtual environment, in reality, such services depend on the workings of computer 15 (2014) 134 S. Ct 2473, 2491. 16 The ‘Software as a Service’ model focuses on end-user application functionality. Such services extend to the uploading of data on to web-based email accounts (e.g. Microsoft’s Outlook); the offering of document hosting facilities (e.g. Google-docs); and social networking sites (such as Facebook). See W. Kuan Hon, Julia Hornle, and Christopher Millard, ‘Data Protection Jurisdiction and Cloud Computing: When are Cloud Users and Providers Subject to EU Data Protection Law? The Cloud of Unknowing, Part 3’, Queen Mary University of London, School of Law Legal Studies Research Paper No 84/2011 (2012), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1924240, 3. 17 Ibid.

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Enforcing Criminal Jurisdiction 387 hardware and physical storage facilities which have ‘real-world’ locations.18 Indeed, the Cloud Computing model is founded on the extensive use of corporeal data-centres which, inevitably, come within the territorial jurisdiction of one state or another. Another central feature of Cloud Computing is that a user’s data will often be broken up, copied, and distributed across a number of servers for the purposes of efficiency and security.19 As a result, fragmented and mirrored data may be kept in different legal jurisdictions.20 Against this background, Cloud Computing has generated two interrelated difficulties for Law Enforcement Agencies (LEAs). The first involves situations where the officials of an investigating state gain access, by unilateral means, to data which is located in the territory of another state; the second concerns the same kind of unilateral trans-border activity with the difference that the geographical location of the sought-after data is unknown to the searching officials. This phenomenon has been labelled the ‘loss (of knowledge) of location’: one of its consequences is that, because the investigating officials cannot establish the whereabouts of the data in question, they do not know which state’s territorial jurisdiction is being violated as a result of their activities.21

III.2. The Blurring of Online and Offline Criminality The trans-border jurisdictional challenge is not restricted to cases where criminal activity occurs exclusively online (‘cybercrime’). ‘Real-world’ crimes increasingly generate electronic data.22 Perhaps, therefore, it comes as no surprise that the Budapest Convention is not restricted to cybercrime per se; instead, it covers the investigation of all specific instances of criminality which generate electronic evidence.23 The generating and storing of electronic data in Cloud facilities has led, invariably, to the creation of a number of legal rights and obligations for the users and providers of such services. Specifically, the data owner/possessor may have entitlements to privacy and data 18 Ibid., 4. 19 Ian Walden, ‘Law Enforcement Access to Data in Clouds’, in Christopher Millard (ed.), Cloud Computing Law (Oxford University Press, 2013), 285, 287–8. 20 However, the way in which data is controlled and located, in Cloud environments, remains an operational decision for the service provider in question. 21 And, therefore, which state to approach for the purposes of securing its consent in order to render their extraterritorial actions lawful. 22 E.g. incriminating photos can be taken and uploaded, emails can be drafted and/or sent, and of course such activity creates traffic data showing the whereabouts of a smart-phone user, times/dates, and Internet Protocol addresses used. 23 Art. 14 of the Budapest Convention provides: Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings. Except as specifically provided otherwise . . . each Party shall apply the powers and procedures referred to in paragraph 1 of this article to: . . . (c) the collection of evidence in electronic form of a criminal offence.

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388 Stephen Allen protection, regarding the remote storage of content data.24 Service providers will, inevitably, be engaged in the processing of such personal data and they may also be deemed to be data controllers as well.25 Data owners/possessors and service providers will also have specific rights and obligations in respect of ‘traffic data’,26 and ‘subscriber information’.27 The cogency of a data owner/possessor’s rights are organized across a spectrum with content data attracting the greatest level of protection followed by traffic data with subscriber information being viewed as less significant, at least from a rights perspective.28

III.3. The Jurisdictional Impacts of Cloud Computing The technological advances associated with Cloud Computing have had at least two major consequences for the present purposes. First, service providers may choose to store data on connected computer networks where its servers are situated not only in a different jurisdiction to the data owner/possessor in question, but also in a separate jurisdiction to the one where the service provider itself is established. The practice of exporting data does not necessarily stem from an attempt to avoid the jurisdictional reach of a given state nor should it be viewed as a response to concerns about regulatory overreach, although, of course, these may be reasons for following such a practice. Instead, as was explained in the Court of Appeals proceedings in the Microsoft Warrant case, it is an arrangement which is often adopted in order to promote network efficiency.29 In that case, the US criminal justice authorities demanded that Microsoft hand over emails (i.e. content data), which were the subject of a Stored Communications 24 E.g. see Art. 8 of the 2000 EU Charter on Fundamental Rights (2012/C 326/02). Content data is not defined in the Budapest Convention. However, para. 209 of the Convention’s 2001 Explanatory Report states that it: ‘refers to the communication content of the communication; i.e. the meaning or purport of the communication, or the message or information being conveyed by the communication (other than traffic data)’. 25 The concept of ‘processing of personal data’ and what constitutes a controller are set out in Art. 2 of the 1995 EU Data Protection Directive (95/46/EC). 26 See Budapest Convention, Art. 1(d). 27 See ibid., Art. 1(c). 28 The Cybercrime Committee’s Guidance Note No. 10 (Art. 18) states that: ‘Obtaining subscriber information may represent a lesser interference with the rights of individuals than obtaining traffic data or content data’ (para. 2.2). The extent to a data owner/possessor or service provider has privacy rights/ duties in respect of traffic data remains contentious. In its 2015 Yahoo! decision (n. 3), the Belgian Supreme Court acknowledged that it would not have been able to hold that the data in question (traffic data) had to be turned over to the Belgian authorities if it had qualified as content data. Further, these categories invariably determine the level of authorization required for LEAs to obtain access and obtain for the purposes of criminal investigations under municipal law. Judgment, para. 9. See Walden (n. 19), 290, for the UK position (although this work was published before the 2016 Investigatory Powers Act was enacted). The US position is set out in see the Court of Appeals Decision in Microsoft v United States, No. 14-1985 (2d Cir. 2016) Judgment, 16–19. On the wider significance of ‘big data’ see Bert-Jaap Koops, ‘Law, Technology, and Shifting Power Relations’, Berkeley Technology Law Journal 25 (2010): 973. 29 See Microsoft v United States (n. 28), 8.

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Enforcing Criminal Jurisdiction 389 Act 1986 probable-cause warrant issued in relation to the suspected commission of drugs trafficking offences in the United States. It was not disputed that the data in question was stored in a data-centre, belonging to Microsoft, in Dublin, Ireland.30 The central issue in the litigation was whether the US authorities may compel a service provider to deliver content data located in another state’s territorial jurisdiction, without its consent. As a result, this case can be used to illustrate the problems associated with unilateral trans-border activity where the location of the data in issue is known to the officials of the investigating state.31 Second, Cloud Computing arrangements may make it is very difficult to establish the national location of any specific data which is stored in a given service provider’s Cloud (i.e. which of its data-centres houses the data in issue).32 This phenomenon has been termed the ‘loss of (knowledge of) location’ but even if the data’s actual location is unknown to the authorities of the searching State, the data must, in fact, exist somewhere even if the data is stored in the form of fragmentary and replicated pieces. Both situations are deeply problematic for national LEAs, albeit in different ways, because their actions in Cloud and online settings must observe the territoriality principle for the purposes of enforcement jurisdiction. Specifically, if an LEA conducts criminal investigations in the jurisdiction of another state, they may be violating that state’s territorial integrity, jurisdictional competence, and sovereign authority as a matter of international law. The territorial whereabouts of a particular data set determines which state is entitled to exercise enforcement jurisdiction and, therefore, which criminal justice system has the authority to investigate, prosecute, and adjudicate in relation to a given matter. The extraterritorial data storage problem presents a clear obstacle to the authority of the investigating state. However, if the location of the data in issue is known, the investigating LEA may be able to approach the other state with a view to conducting a search within its territory, pursuant to pre-existing MLAT arrangements. For example, in the Microsoft Warrant case, Microsoft had structured its operations in such a way that the data in issue was stored at a particular location for reasons of network efficiency. It claimed that, in order to secure lawful access to that data, the US authorities should have used the MLAT arrangements the US government had concluded with Ireland and/or the European Union for this purpose instead of trying to obtain the data unilaterally, in contravention of international law.33 In sharp contrast, the loss of location problem is more fundamental because it cannot be said with certainty where the sought-after data is situated. Consequently, it is very hard to establish which state has jurisdiction to 30 Via a wholly owned subsidiary company registered in Ireland. Microsoft maintained that no copies of the emails which had been exported to Ireland, were retained in the United States. 31 The Microsoft Warrant Case will be examined in Section VI of this chapter. 32 It might be argued that individual internet users can be easily identified by the IP addresses they use but this is to overestimate the accuracy of geolocation technologies and to overlook the way in which proxy servers can be used to avoid identification and detection. See Koops and Goodwin (n. 13), 43. 33 See the US/EU and the US/Ireland MLATs (n. 12) and see Section VI of this chapter.

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390 Stephen Allen enforce its criminal justice regime in a concrete case. In such circumstances, it may be virtually impossible for a given national LEA to secure access to the data in issue through the use of lawful means. As discussed later, certain states have sought to overcome the twin difficulties generated by Cloud Computing by using self-help methods. However, by engaging in unilateral trans-border practices for the purpose of accessing and retrieving data in such situations, investigating LEAs may be behaving in a manner which is contrary to established international law.

IV. The Problem of Loss of (Knowledge of) Location IV.1. Jurisdiction and the Budapest Convention A state’s criminal justice authorities, invariably, possess the legal authority to access and seize data obtained through the search of a connected computer system situated within its national territory. This position was confirmed in the Budapest Convention. In particular, Article 19 requires States Parties to enable their respective LEAs to search, or access: a computer system, and any data stored within it (Article 19(1)(a)), or a computer-data storage facility located within their own national territory (Article 19(1)(b)). Further, Article 19(2) allows for an extended network search where the national a uthorities ‘have grounds to believe that the data sought is stored in another computer system or part of it in its territory, and such data is lawfully accessible from or available to the initial system’. In such cases, the Convention provides that they ‘shall be able to expeditiously extend the search or similar accessing to the other system’. Finally, under Article 19(3), States Parties are required to empower their own LEAs to seize or secure computer data obtained pursuant to a search undertaken in accordance with the terms of Article 19(1) and (2) and to copy any data obtained, to render it inaccessible, or to delete it. Nevertheless, these powers are subject to conditions and safeguards, set out in Article 15, which render certain international standards of human rights protection applicable in relation to their exercise.34 34 Art. 15(1) provides that: ‘Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this Section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the [European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR)] and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.’

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IV.2. Article 32 of the Budapest Convention: The Narrow Territorial Exception The Budapest Convention grounds itself in the ordinary principles of jurisdiction.35 Notwithstanding this orthodox approach to jurisdiction at a general level, the Convention did come up with an original solution to the problem of unilateral transborder access to stored computer data. In particular, Article 32 provides that:

A Party may, without the authorisation of another Party: (a) access publicly available (open source) stored computer data, regardless of where the data is located geographically; or (b) access or receive, through a computer system in its territory, stored computer data located in another Party, if the Party obtains the lawful and voluntary consent of the person who has the lawful authority to disclose the data to the Party through that computer system.

Article 32 allows LEAs to engage in unilateral trans-border access if the data owner/ possessor has voluntarily consented to such access, or if the service provider has given lawful consent for this purpose. However, there are a number of obvious difficulties with this provision. First, it is unlikely that an individual, who may well be a suspect, will be prepared to consent to such access due to the risk of self-incrimination.36 Second, as the Cybercrime Committee acknowledges, a service provider is unlikely to be able to give lawful consent because the material contractual terms and conditions of any service agreement will not be sufficient to show that the data owner/possessor has given his or her informed consent for this purpose.37 Third, it is highly doubtful that a service provider would be able to give valid consent in any event as this may well violate the core principles of data protection law.38 As a result, many service providers are unwilling to allow access to LEAs or to hand over data, in the absence of judicial order. Finally, as stated previously, if the national location of the data is unknown (or uncertain), then Article 32 will be inapplicable as the provision requires that the data be stored in the territory of another State Party. In sum, Article 32 does not really address the issue of trans-border access effectively. Notwithstanding this conclusion, at a conceptual level, the provision is significant because it displaces the territoriality principle in a narrow 35 See Art. 22, Budapest Convention. 36 See Jan Spoenle, ‘Cloud Computing and Cybercrime Investigations: Territoriality vs. the Power of Disposal?’, Council of Europe Project on Cybercrime Discussion Paper, Strasbourg, Council of Europe (2010), 7. 37 See Council of Europe Cybercrime Convention Committee, Report of the Transborder Group for 2013 (2013) 30, 5 November 2013, 5; and the Council of Europe Cybercrime Convention Committee, T-CY Guidance Note No. 3 Transborder Access to Data (Article 32), 3 December 2014, para. 3.6. 38 This point assumes that a data protection regime applies in relation to the activity in question.

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392 Stephen Allen range of cases based on the consent of private individuals (and other non-state actors) rather than the directly affected state. It is notable that Article 15 was not drafted so as to be applicable in relation to the exercise of the substantive rights and obligations enumerated in the Budapest Convention. The text makes it clear that the human rights protections identified in this provision are only relevant to the exercise of the procedural powers set out ‘in this Section’.39 In any event, Article 15 was not meant to be engaged in extraterritorial situations. Accordingly, it is hard to see how these human rights protections can be read into situations involving the operation of Article 32 as a matter of course. It may be argued that recent jurisprudential advances, which have widened the scope of extraterritorial jurisdiction, could be harnessed in order to trigger such protections where it can be shown that the targeted individuals come within an investigating state’s jurisdiction.40 However, the prospect of these rights being afforded to individuals whose data is the subject of unilateral trans-border investigation by a foreign LEA was not envisaged, or endorsed, in the 2001 Convention. One highly questionable way of addressing this difficulty is to adopt the mindset that if it cannot be established which state’s jurisdictional competence has been violated by the remote, unilateral investigative actions of another state, then it should be assumed that the data is located within the territorial jurisdiction of the searching state without further enquiry. Another approach would be to assume that, because it is highly unlikely that the affected state will ever discover that the remotely accessed/obtained data was actually located within its territory, then, in the absence of knowledge, only a nominal infringement of its sovereign authority has occurred. Both approaches are without foundation from the standpoint of international legality. But, as discussed later, they do seem to have influenced the responses and recommendations of institutional actors to the jurisdictional challenges engendered by unilateral trans-border access. Moreover, this point of view appears to be particularly attractive when unilateral trans-border activity can be justified on exceptional grounds. In these circumstances, it is perhaps unsurprising that some states have chosen not to wait for international consensus to emerge on this issue. Specifically, certain LEAs have been accessing and retrieving data stored on connected computer systems in a manner that may, ostensibly, be consistent with the terms of Article 19(2) of the Budapest Convention while ignoring the provision’s qualification, which restricts the exercise of such investigatory powers to the searching state’s own territory.41 Further, certain LEAs 39 See the Council of Europe Commissioner for Human Rights, The Rule of Law on the Internet and in the Wider Digital World (2014), 94. 40 See e.g. Al-Skeini and Others v UK (2011) 53 EHRR 18; Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford University Press, 2011); Samantha Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts To’, Leiden Journal of International Law 25 (2012): 857. 41 In this context, it is worth noting that Art. 88 of the Belgian Code of Criminal Procedure allows the Belgian criminal justice authorities to access data known to be abroad in exigent circumstances and subject to certain conditions. The Dutch practice is to permit an extraterritorial search for data, on an exceptional basis, if the data’s location is unknown (or if a remote search was undertaken by mistake) subject to a good faith requirement. See Koops and Goodwin (n. 13), 55, 84–7.

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Enforcing Criminal Jurisdiction 393 have also adopted the practice of conducting extraterritorial searches for data located in Cloud facilities that are not dependent on the existence of a connected computer network based in the investigating state’s territory. In other words, in such cases, an LEA would be engaging in a free-standing remote search rather than an extended search of a computer system situated within its national territory. Both these practices encroach on the territorial jurisdiction of another state and, therefore, they amount to a patent violation of international law. As noted earlier, a state may consent to the exercise of enforcement jurisdiction, by another state, in its territory in specific situations, via established MLAT arrangements, the use of which prevents what would otherwise amount to a wrongful act as a matter of international law. Consequently, in the absence of consent, such conduct may lead to a finding of state responsibility, in appropriate cases.42

IV.3. Extending Unilateral Trans-Border Access The Cybercrime Committee has been grappling with the jurisdictional challenges posed by unilateral trans-border access for a number of years now. In 2011, it set up a subgroup, the Trans-Border Access Group (TAG), to examine the jurisdictional problems that such activity posed for international law with a view to drafting an additional protocol to the Budapest Convention.43 The TAG identified several ways in which these jurisdictional challenges could be addressed. They included, inter alia, unilateral trans-border investigative activity in the territory of another state without its consent, if the criminal justice authorities of the searching state: (a) gained access with the lawfully obtained authentication credentials of the data owner/possessor in question; or (b) they were acting in good faith or if their actions were justified by exigent circumstances (e.g. in response to an imminent danger, to prevent physical harm or the destruction of evidence).44 The TAG also considered excising the territorial restriction contained in Article 19(2) so that an LEA could search for data, via a connected computer network, beyond its national territory.45 In this respect, it r ecommended that such an approach should only be applied if the data was known to be in the territory of another State Party, or when its location was unknown.46 Moreover, in its 2013 Annual Report, the TAG stated its view of the consequences of the loss of location in the clearest possible terms when it concluded that: ‘It is not possible to apply the p rinciple of territoriality if the location of the data is uncertain.’47 This observation is particularly troubling from the perspective of international law because it reveals an eagerness to 42 See Section VI of this chapter. 43 See the Council of Europe Cybercrime Convention Committee, ‘(Draft) Elements of an Additional Protocol to the Budapest Convention on Cybercrime regarding Transborder Access to Data’, T-CY (2013) 14, 9 April 2013. 44 Ibid., 2–6. 45 Ibid., 5–6. Also see the Council of Europe Cybercrime Convention Committee (2013) (n. 37), para. 296. 46 Council of Europe Cybercrime Convention Committee (n. 43). 47 See the Council of Europe Cybercrime Convention Committee (2013) (n. 37), para. 298.

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394 Stephen Allen cast aside the primary principle of enforcement jurisdiction—territoriality—in favour of untried and untested alternatives. The default position should be that where the sought-after data’s location is uncertain, the searching state should not attempt to access, or retrieve, data located in an extraterritorial setting due to the constraints imposed by the territorial character of enforcement jurisdiction. Nonetheless, it should be acknowledged that such a straightforward response prioritizes the principle of territoriality over a state’s duty to maintain the integrity of its criminal justice system. Consequently, it is evident that alternative approaches need to be considered in order to find a way of achieving a better balance between these competing legal obligations. One of the TAG’s most interesting recommendations concerned the adoption of what has been termed ‘the power of disposal’, an approach which offers a way of establishing a connection between a searching state and a data owner/possessor, for the purpose of undertaking a remote search in accordance with the established principles of jurisdiction in international law.48 This model does not focus on the location of the data for the purpose of determining enforcement jurisdiction. Instead, it concentrates on the whereabouts of the individual (or individuals) who have the right to alter, delete, supress, or render unusable the sought-after data.49 The proposal anticipates that the power would be subject to certain conditions and safeguards. For the present purpose, the most significant are: (i) that it would be only exercisable where the location of the data in question is unknown, or uncertain (i.e. it is meant to address the loss of location problem); (ii) that it could only be used where the LEA has secured the suspect’s authentication credentials, thus ensuring access is obtained in a lawful manner; (iii) that the individual data owner (or possessor) whose data is targeted is in the territory of the searching state;50 and (iv) that additional safeguards are needed—including the observance of fundamental human rights protections—in certain situations, especially where content data is being sought.51 It has also been suggested that the power could only be used in exigent circumstances and/or pursuant to a judicial order. The power of disposal does not try to displace the requirement of a territorial connection. Instead, it offers a different understanding of the required territorial link. Specifically, by focusing on the location of the data owner/possessor rather than the whereabouts of the data in question, the exercise of enforcement jurisdiction is, supposedly, transposed from the extraterritorial realm into the domestic one by the act of establishing the presence of the suspect in the searching state’s territory. Accordingly, this innovative approach is still based on the requirement of a territorial connection for the purpose of exercising enforcement jurisdiction. Nevertheless, according to this method, the presence of the data owner/possessor within the territory of the investigating

48 See Spoenle (n. 36). 49 Spoenle suggests that such a legal power is recognized by the Budapest Convention and points to Art. 2 (concerning illegal access) and Art. 4 (data interference) in support, ibid., 10. 50 The power could also be exercisable in respect of a national of the searching state, ibid., 11. 51 Spoenle refers to Art. 15 BC in this regard but he does not appear to have appreciated the limit placed on the application of this provision, ibid., 12.

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Enforcing Criminal Jurisdiction 395 state takes precedence over the location of the data in issue and it is this which provides the jurisdictional trigger, in such cases.52 However, the power of disposal model does not readily acknowledge the fact that, in cases where the data is situated outside the searching state’s own territory, the investigating LEA will still need to conduct a remote search for the material data in the territory of another state. As a result, the officials of the searching state will, inevitably, be exercising coercive public power in another state’s jurisdiction, in violation of its sovereign authority. The proposed approach, therefore, ignores the extraterritorial aspect of the investigating state’s activities, preferring instead to focus on the whereabouts of those individuals who own, possess, or control the data in question. Such an approach does not solve the problems associated with enforcement jurisdiction and, therefore, it does not offer a principled alternative to the general prohibition which was famously articulated in the Lotus decision. Further, the power of disposal would seem to necessitate the drawing of a distinction between the exercise of jurisdiction over things (i.e. data), on the one hand, and persons, on the other. It could be argued that this approach might be supported by the fact that the investigative actions carried out by the agents of the searching state would not necessarily involve them physically entering another state’s territory, or require the exercise of coercive powers over persons located there.53 The strong implication being that the exercise of jurisdiction over property is somehow less intrusive than its exercise over persons. International law has never sought to distinguish between persons, things, and events for the purpose of exercising either prescriptive or enforcement jurisdiction. Further, the idea that an individual’s rights can be clinically separated from his or her property rights is completely untenable.54 Moreover, from another perspective, such an approach would appear to endorse an unparalleled form of universal jurisdiction in relation to data; consequently, this argument lacks a secure jurisprudential foundation. It has been suggested that the power of disposal amounts to a procedural measure which does not involve the exercise of coercive power by state officials,55 but it remains unclear why this is supposedly the case. The proposal’s originator, Jan Spoenle, may have reached this conclusion because the power would be exercisable in respect of property rather than a given individual, or individuals. However, any such a distinction belies a misunderstanding of the implications of the exercise of public power in the context of fundamental human rights. Spoenle, evidently, understands that safeguards are needed to protect such rights, particularly in relation to content data, but he does not seem to appreciate that its implementation would depend on the 52 For the purposes of the power of disposal, such a focus is logically necessary because the location of the data is considered to be unknown or uncertain. 53 See the position adopted by the Belgian Supreme Court in the Yahoo! case (n. 3), as discussed in Section VI of this chapter. 54 See the provisions of the International Covenant on Civil and Political Rights (1966) 999 UNTS 171 (ICCPR); and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), ETS No. 5 and Art. 1 of Protocol 1 to the ECHR. 55 Spoenle (n. 36), 10.

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396 Stephen Allen exercise of broad coercive powers, by the public officials of the investigating state, in any event. Finally, it is hard to see how the use of lawfully obtained authentication credentials could satisfy the broad requirements of legality as their use would involve state officials impersonating the individual concerned rather than providing a degree of legitimacy for an LEA’s actions, in exceptional circumstances. The TAG’s recommendations—including the proposed power of disposal— attracted strong criticism from key institutional actors—including the European Parliament—due to serious concerns about the consequences that wide-ranging forms of unilateral trans-border access would have for the fundamental rights of directly affected individuals (especially suspects); for the legitimate interests of third parties (e.g. service providers); for the integrity of data protection regimes; and for the sovereign authority and territorial jurisdiction of those states affected by such extraterritorial activities.56 In 2014, in response to such pressures, the Cybercrime Committee decided to drop its plans for the reform of trans-border access to data along these lines.57 But since this setback, the Committee has redoubled its efforts to find the means to address the rapidly growing trans-border aspects of everyday criminality, which now represents a serious threat to the effective functioning of national criminal justice systems. In particular, in 2016, the Cybercrime Committee set up the Cloud Evidence Group (CEG) which was tasked with exploring whether new ways of addressing the jurisdictional challenges posed by the Cloud Computing could be found.58 The CEG’s proposals will be explored in detail later but, rather than seeking to tackle the loss of location problem, the Group chose to channel its efforts into situations where the data’s location is known. Even so, in its Final Report, the CEG made it clear that the loss of location problem still needs to be addressed. To this end, it urged the Cybercrime Committee to reconsider the TAG’s proposals, in the context of the recently revived process of the drafting of an additional protocol to the Budapest Convention.59 As a result, those proposals remain alive and so it is important that, when institutional actors are reconsidering them, they have a clear understanding of their implications for international law and that any proposed reforms in this area are either consistent with the existing fundamental principles of the international legal order or seek to bring about the progressive development from a position of knowledge and understanding.

56 See the Council of Europe Cybercrime Convention Committee, ‘Transborder Access to data and Jurisdiction: Options for Further Action by the T-CY’, T-CY (2014) 16, 10. 57 Ibid., 12. 58 Council of Europe Cybercrime Convention Committee, ‘Criminal Justice Access to Electronic Evidence in the Cloud: Recommendations for consideration by the T-CY’, T-CY (2016) 5. 59 Ibid., 144. Also see the Council of Europe Cybercrime Convention Committee, ‘(Draft) Terms of Reference for the Preparation of a Draft 2nd Additional Protocol to the Budapest Convention on Cybercrime’, T-CY (2017) 3.

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Enforcing Criminal Jurisdiction 397

V. Unilateral Trans-Border Activity Where Location of Data Is Known V.1. Using Production Orders in Extraterritorial Settings The prospective use of production orders as a means of compelling individual data owners/possessors and service providers to hand over data to national LEAs, quickly gained significance in the CEG’s work and this way of addressing the jurisdictional challenges presented by cross-border criminal activity has subsequently been championed by the Cybercrime Committee. The Budapest Convention seems to lend its support to the possibility that production orders may provide the basis for a fresh approach to the problems associated with the exercise of unilateral trans-border jurisdiction. Specifically, Article 18(1) of the Convention provides that:

Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order: (a) a person in its territory to submit specified computer data in that person’s possession or control, which is stored in a computer system or a computer-data storage medium; and (b) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider’s possession or control.

Thus, Article 18(1)(a) allows the LEA of a State Party to issue production orders to individuals within its national territory requiring them to submit specific computer data stored in a computer system which is in their possession or under their control. Alternatively, under Article 18(1)(b), a service provider may be ordered to submit ‘subscriber information’ in its possession or control where it offers services in the territory of a State Party. It is notable that, under this provision, a service provider is liable to p roduce information of a much more limited nature than in cases where a production order is addressed to the data owner/possessor.60 In its Guidance Notes on Article 32 and Article 18, the Cybercrime Committee made it clear that these provisions were adopted without prejudice to any additional powers provided for by the municipal laws of Parties to the Convention.61 In other words, it recognizes that states retain a wide margin of discretion as far as jurisdictional claims are concerned, an approach which is consistent with international law’s orthodox position regarding the exercise of prescriptive jurisdiction. In addition, the Guidance 60 See Art. 18(3); the Budapest Convention’s Explanatory Report (2001), para. 177; and Guidance Note No. 10 (Art. 18) (n. 28), para. 2.2. 61 Guidance Note No. 3 (Art. 32) (n. 37), para. 3.2; and Guidance Note No. 10 (Art. 18) (n. 37), para. 3.3; and Explanatory Report (n. 60), para. 293.

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398 Stephen Allen Notes do not directly seek to challenge the established territorial conception of enforcement jurisdiction.62 Nonetheless, the most significant observation as far as Article 18(1) is concerned is that, in relation to both Article 18(1)(a) and (b), the sought-after data need not be within the ordering state’s territory for it to be subject to a production order.63 The functional scope of Article 18(1) was elaborated upon by the Cybercrime Committee in its corresponding Guidance Note. Specifically, the Committee stated that while production orders have the capacity to manifest an extraterritorial dimension, because they facilitate the retrieval of data which may be located in the territory of another state, such orders were justifiable because the individual addressees of a production order are persons who freely exercise possession or control over the sought-after data.64 The key requirement as far as the functioning of Article 18 is concerned is that the recipient of a production order is present in the territory of the ordering state at the material time. Like the contemplated extension to Article 32 regarding unilateral trans-border access, considered in the previous section, it is apparent that the territoriality principle is being reorientated from one focused on the location of the sought-after data for the purposes of determining the issue of enforcement jurisdiction to the whereabouts of the data owner/possessor instead. It is clear that Article 18 was not designed to cover instances where LEAs are directly involved in the search for remotely stored data. Instead, it appears to be a relatively modest device, one intended to operate in situations where either the identity of the individual data owner/possessor, or the relevant service provider, is known.65 In the Committee’s view, production orders constitute a less intrusive measure when compared with the search and seizure powers set out in Article 19 of the Budapest Convention. In addition, production orders still require the identity of the suspect to be known, and therefore, they cannot address the loss of location problem. Further, Article 18 only requires service providers to supply subscriber information as opposed to traffic or content data. Accordingly, while such orders certainly have the capacity to make a meaningful contribution to resolving the jurisdictional challenges presented by transborder criminality, at best, they could only ever amount to a partial solution to these enduring problems. One significant difference between the approaches adopted in Articles 32 and 18 respectively seems to be that, in relation to the operation of production orders, the investigating state would not be exercising coercive enforcement powers directly within the jurisdiction of another state; rather it would be requiring the individual data owner/ possessor—or the relevant service provider in relation to subscriber information—to 62 See Guidance Note No. 10 (n. 37), para. 1. Art. 32 was developed as a narrow exception to the territorial conception of enforcement jurisdiction. H. Kaspersen, ‘Cybercrime and Internet Jurisdiction: Discussion Paper (Draft)’, Strasbourg, Council of Europe Project on Cybercrime (2009), 27, para. 75. 63 See Guidance Note No. 10 (n. 37), paras. 3.1. and 3.5; and the Explanatory Report (n. 60), para. 173. 64 See Guidance Note No 10 (n. 37), and the Explanatory Report (n. 60). 65 Of course, knowing the identity of individual concerned is essential to the process of serving a valid production order in the first place.

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Enforcing Criminal Jurisdiction 399 take the necessary steps to access and retrieve data which is located in another state’s jurisdiction. In other words, in such cases, it appears that the ordering state is allowed to use indirect means to acquire the sought-after data. Nonetheless, on this reading, the searching state is still exercising its coercive authority, but as this is being done within its own territory its actions would seem to be in conformity with the territorial conception of enforcement jurisdiction. Thus, at first glance, it appears as though Article 18 provides the legal foundations in support of a credible—if somewhat limited—solution to the challenge of securing access to data in trans-border situations. However, the basis for the Cybercrime Committee’s assertion that production orders are less intrusive than the search and seizure powers contained in Article 19 is questionable.66 Production orders may be a more limited measure in terms of their scope of application, and, of course, they rely on indirect means of enforcement in relation to data which is located in an extraterritorial location, but there can be no denying that they involve the use of coercive powers by state officials against a recipient. Further, it appears that the Cybercrime Committee’s interpretation of a production order has been guided by private law examples. Specifically, the CEG viewed Article 18 production orders as being comparable to inspection orders, which may be issued by the national authorities for the purpose of gathering digital evidence stored, via Cloud facilities, on servers located abroad in anti-trust cases.67 It would appear that, in relation to both the functioning of inspection orders and production orders, the recipient is required to turn over data despite its extraterritorial location. The vital common element being that the recipient is present on the territory of the ordering state and the measure was issued under its executive authority under the terms of its national law. But, in drawing an analogy between Article 18 production orders and inspection orders issued pursuant to EU Competition Law, the Cybercrime Committee failed to appreciate the difference between a measure developed for use in the context of civil litigation and one devised for the purpose of exercising criminal jurisdiction.68 The coercive nature of criminal measures, their impact on recipients, and the penalties which non-observance attracts render these two orders incomparable. This is especially true when one considers that the extraterritorial effects of criminal measures will be heightened—from the perspective of the directly affected state—by the fact that criminal justice authorities of the investigating state will be involved. In this respect, it is important to emphasize that a pivotal consideration in the context of determining whether there is an exercise of enforcement jurisdiction by one state in the territory of another is establishing who is involved—directly or indirectly—in such activity. If the conduct is undertaken by officials who are carrying out governmental functions (or if a private actor is authorized to carry out such public functions), then it is much more likely for 66 See Guidance Note No. 10 (n. 28), para. 3.4; and the Explanatory Report (n. 60), para. 171. 67 In this regard, the CEG’s approach was informed by the ‘long-arm anti-trust doctrine’ which is observed in EU Law: see the Case 48/69, ICI Ltd v EC Commission, EU:C: 1972:70 (ECJ) and the Case C-89/85, Woodpulp Case [1993] ECR I-0130. See the CEG’s Report (n. 58), para. 49. 68 This leap between criminal and civil jurisdiction is made the CEG’s Report (n. 58), paras. 48–9.

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400 Stephen Allen such activity to will be attributed to the investigating state.69 In contrast, inspection orders (and subpoenas too) are not considered to be instances of the exercise of enforcement jurisdiction because they are not executed by public officials. Rather, they are issued typically at the behest of private parties;70 nor do they mandate private individuals to exercise governmental authority in order to bring about compliance. The entire argument in favour of the extraterritorial applicability of Article 18 production orders is premised on accepting that the ordering state has not conducted an extraterritorial criminal investigation at all, but rather that it has merely used its coercive powers over an individual, or individuals, present within its own territory. However, it is clear that this is a flawed assumption as it fails to account properly for the extraterritorial effects of the ordering state’s conduct and it ignores the way in which the extraterritorial actions of a compelled individual—the recipient of a production order—may be attributed to the ordering state in certain circumstances (especially where that person is a custodian of data belonging to another) for the purposes of establishing state responsibility.71 In addition, it is clear that Article 18 production orders do not address the question of consent in a satisfactory way. As noted in the previous section, Article 32 permits state officials to engage in unilateral trans-border access but this provision is validated by the freely given consent of a data owner/possessor,72 rather than as a result of the compelled production of data at the bequest of the ordering state. Indeed, it is apparent that a data owner/possessor’s consent is not a legal requirement for operation of Article 18 production orders, as mediated through national measures. However, given the general legitimizing role that consent performs in relation to the data protection regimes,73 it is hard to accept the Cybercrime Committee’s assertion that production orders are, in fact, any less intrusive than other criminal measures when all the relevant factors are taken into consideration. In July 2017, the Cybercrime Committee made arrangements for the commencement of work on drafting of an additional protocol to the Budapest Convention. It is expected that the draft protocol will seek to achieve a number of objectives, including: (i) to strengthen existing MLAT processes; (ii) to facilitate direct cooperation between LEAs and service providers in other jurisdictions; (iii) to establish a legal framework for the conduct of unilateral forms of trans-border access in exceptional cases; and (iv) to establish data protection requirements in the above situations.74 A key proposal identified, by the CEG, in this context concerns the development of Article 18 production 69 See Section VI of this chapter. 70 This point is noted in the context of the operation of subpoenas in the amicus brief by International and EU Law Scholars submitted to the Supreme Court in support of the Respondent, in the Microsoft Warrant case (n. 4), 19. See Section VI of this chapter. 71 See Section VI of this chapter. 72 Or, alternatively, the consent of the service provider in very limited circumstances. 73 See Bert-Jaap Koops, ‘The Trouble with European Data Protection Law’, International Data Privacy Law 4 (2014): 250. 74 See the CEG’s Report (n. 58), 35–46; and the ‘(Draft) Terms of Reference for the Preparation of a Draft 2nd Additional Protocol’ (n. 59).

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Enforcing Criminal Jurisdiction 401 orders. To this end, it is notable that, in its 2016 recommendations, the CEG suggested that the jurisdictional options previously recommended by the TAG should be reconsidered within the context of this initiative. Consequently, it appears that the Committee intends to revisit the jurisdictional challenges posed by unmediated trans-border access and, specifically, the loss of location problem in the foreseeable future. The broadening and deepening of Article 18 may be more palatable to institutional actors, and States Parties to the Budapest Convention, because the scope of production orders may— ostensibly—be susceptible to a broad interpretation in cases where the data in issue is located beyond the territory of an ordering state. In sharp contrast, demanding content and traffic data directly from service providers remains highly contentious for numerous reasons, including data protection considerations, fundamental rights observance, and commercial sensitivity, in addition to the general problem of the exercise of enforcement jurisdiction in another state’s territory. Against this background, it is suggested that the Cybercrime Committee’s faith in the capacity of production orders to address the jurisdictional challenges posed by extraterritorially located data for the investigation of criminal activity by national LEAs, is fundamentally unsound. The next section will seek to illustrate the difficulties confronting the Committee’s preferred means of regulating unilateral trans-border activity by reference to two recent cases, namely the Belgian Supreme Court’s judgment in the Yahoo! case and, more significantly, the Microsoft Warrant case.

VI. Recent Cases VI.1. The Belgian Yahoo! Case (2013–15) The Belgian Yahoo! case concerned a request made by the Belgian public prosecutor to Yahoo! for traffic data in an effort to establish the identity of certain persons who, allegedly, used email addresses to commit internet fraud in Belgium, in violation of Article 46(a)(2) of the Belgian Code of Criminal Procedure. Yahoo!, a US based company which was not established in Belgium, refused to provide this information. Ultimately, the Belgian Supreme Court decided that: (i) Yahoo! qualified as an electronic communications service provider; (ii) it was commercially active within Belgium; and (iii) it targeted Belgian consumers.75 Accordingly, the Belgian Supreme Court ruled that Yahoo! had ‘voluntarily’ submitted to the relevant provisions of Belgian law,76 and its refusal to provide the required information constituted a criminal offence under Belgian law.77 In reaching this conclusion, the Supreme Court held that there was no exercise of 75 See Yahoo! (n. 3), paras. 7–8. 76 Ibid., para. 9. The Supreme Court also observed that: ‘A State imposes a measure of coercion on its own territory as far as there is, between the measure and that territory, a sufficient territorial link’ (para. 5). 77 Ibid., para 3.

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402 Stephen Allen extraterritorial jurisdiction, on the facts, because the Belgian authorities had not conducted any criminal investigations in the territory of another state.78 In its view: ‘The Public Prosecutor does not require anything in the United States from an American subject, but requires something in Belgian from an American subject offering services on Belgian territory.’79 Consequently, it decided that the orthodox territorial requirements for the exercise of enforcement jurisdiction were satisfied.80 However, in delivering judgment, the Belgian Supreme Court drew a clear distinction between traffic data, which it considered to be susceptible to Belgian jurisdiction because was this data was deemed to be moving through Belgian territory, and content data which may be located within another jurisdiction. It acknowledged that the Belgian state would not have jurisdiction to enforce its jurisdiction in the latter situation.81 While the Supreme Court did not give reasons for such a distinction it may have thought that the extraterritorial dimension of such unilateral conduct was harder to justify as any reference to territoriality would necessarily be more oblique. Of course, the Yahoo! case involved the issuing of a nationally developed criminal measure. The Belgian authorities could not rely upon Article 18(1) of the Budapest Convention because, under that provision, a service provider can only be required to produce subscriber information whereas, in the present case, the Belgian authorities were demanding that Yahoo! turn over traffic data. The question of whether the criminal justice authorities of the investigating state can access, or obtain, content data which is located in another state was the subject of proceedings at the US Supreme Court in the Microsoft Warrant case.

VI.2. The Microsoft Warrant Case: Court of Appeals Decision As noted, the dispute concerned the operation of a warrant, issued pursuant to § 2703 of the US Stored Communications Act 1986 (SCA),82 which, purportedly, compelled Microsoft to disclose specified content data to the US authorities in its possession, custody or control, data that would otherwise be protected under the provisions of the Act. During the Court of Appeals proceedings, Microsoft argued that, as the soughtafter data was located in Ireland, the US authorities would be undertaking enforcement activities in the territory of another state. Moreover, it contended that, given the SCA’s silence as to its territorial scope, the long-standing presumption against the extraterritorial application of US statutes should be upheld.83 According to the 78 Ibid., para 8. 79 Ibid., para 9. 80 Ibid., paras. 4–5. 81 Ibid., para. 9. 82 The SCA forms Title II of the Electronic Communications Privacy Act 1986. 83 See the Court of Appeals judgment (n. 28), 5. The presumption has evolved to guard against unintended clashes between US law and the laws of other states. Also see the closely related Charming Betsy canon which evolved out of the analysis offered by Chief Justice Marshall in the US Supreme Court’s judgment in Murray v the Schooner Charming Betsy (1804) 6 US (2 Cranch), 64. For a recent assessment of this case see William S. Dodge, ‘The Charming Betsy and The Paquete Habana (1804 and 1900)’, in Eirik Bjorge and Cameron Miles (eds.), Landmark Cases in Public International Law (Oxford: Hart Publishing, 2017), 11.

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Enforcing Criminal Jurisdiction 403 jurisprudence of the Supreme Court,84 in cases where Congress has not expressly provided for the extraterritorial application of a statute, a court must determine the Act’s focus in order to establish whether: (i) the regulated conduct has occurred in a domestic setting; or (ii) it can be shown that the relevant behaviour involves the taking of action beyond US territory, in which case the statute would manifest an extraterritorial application.85 In applying this test, the Court of Appeals decided that the SCA’s focus concerned the protection of p rivacy rights in the context of information technology communications.86 In its view, such a conclusion was supported by the statute’s full title— the Electronic Communications Privacy Act—and the structure of its key provisions.87 Accordingly, it ruled that the constitutional safeguards contained in the Fourth Amendment applied to stored electronic communications.88 In addition, it noted that, under the terms of the warrant, Microsoft was not required to hand over its own data, but rather it was required to disclose information belonging to one of its customers. In the circumstances, the Appeals Court observed that, as the custodian of its customers’ data, Microsoft was subject to a special duty to protect his or her privacy rights.89 The Court of Appeals went on to determine the point at which the interference with the customer’s privacy rights would take place in the event that the warrant was enforced. The key question, in this respect, was whether it would occur at the location where Microsoft hands over the data to the US authorities (i.e. in US territory after Microsoft had exported it there) or in Ireland, when Microsoft accesses the data stored in its Dublin data-centre, for the purposes of its retrieval. If the former was correct, then the SCA would appear to manifest a permissible domestic application whereas, if the latter were true, then the regulated conduct would involve an impermissible extraterritorial application of the SCA. The Appeals Court held that any interference with a customer’s privacy rights occurs where the protected data is stored.90 Therefore, as the sought-after data was kept in a data-centre located in Dublin, it resolved that the warrant’s execution would infringe upon Ireland’s sovereignty, if MLAT procedures have not been followed.91 The Appeals Court noted that the terms of the SCA warrant compelled Microsoft to search and seize specified data, data which the parties agreed is located abroad. In this context, it observed that warrants are only applicable in relation to US territory and it ruled that there was nothing to indicate that Congress intended for SCA warrants to 84 See Morrison v National Australian Bank Ltd, 561 US 247 (2010), 255. 85 See Court of Appeals judgment in the Microsoft Warrant case (n. 28), 21–5. 86 Ibid., 6. 87 Ibid., 13–17. § 2701 protects stored electronic communications from unauthorized interference. § 2702 prevents service providers from divulging such communications without the data owner/possessor’s consent. § 2703 permits these communications to be disclosed pursuant to a warrant issued in accordance with rule 41 of the Federal Rules on Criminal Procedure (which requires that a warrant be issued by a court of competent jurisdiction). 88 Court of Appeals judgment in the Microsoft Warrant case (n. 28), 13 and 14. The Fourth Amendment to the US Constitution recognizes the right of persons and their property to be protected against unreasonable searches and seizures in the absence of a probable-cause warrant. 89 Ibid., 31–2, 40. 90 Ibid., 39. 91 Ibid., 42.

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404 Stephen Allen have a different territorial scope.92 Consequently, it held that the term ‘warrant’ should be given its ordinary meaning.93 In reaching this conclusion, the Appeals Court also dismissed the US government’s claim that an SCA warrant was materially different from an ordinary warrant because it exhibited characteristics similar to those of a subpoena.94 The government had contended that a subpoena requires a recipient to produce the required material regardless of its location, as long as: (i) he or she is in US territory and (ii) the required information is in his or her custody or control. In support of its argument, the government claimed that an SCA warrant does not require US officials to enter an addressee’s premises to search and seize property in its possession, custody, and control, but rather it requires the addressee to disclose data in its possession to the US authorities.95 In this regard, it argued that there is no physical enforcement activity carried out, by the US authorities, in an overseas location as the necessary steps required to ensure disclosure would be taken by Microsoft itself.96 The Appeals Court was not prepared to accept this assertion, noting that the SCA’s provisions did not indicate that § 2703 warrants possess a hybrid quality.97 In addition, it observed that, contrary to the tenor of the government’s claim, an ordinary warrant is not exclusively dependent on public officials for its execution. Indeed, it is well-settled that private individuals may be required to perform an active role in its enforcement.98 Finally, and importantly for the present purposes, the Appeals Court decided that the SCA warrant required Microsoft to act as an agent of the US government for the purpose of enforcing the warrant in an extraterritorial location and that, in effect, its actions could be attributed to the United States.99 This responsibility would extend to the actions required in order to access and retrieve the data located in Microsoft’s Irish data-centre. In the circumstances, the Appeals Court concluded that the warrant was unlawful.

VI.3. Microsoft Warrant Case in the Supreme Court In its Petition to the Supreme Court in the Microsoft Warrant case, the US government argued that the relevant conduct in issue would take place in the US rather than abroad.100 Specifically, for the purpose of determining the statute’s focus, it claimed that the Court should follow a provision by provision approach instead of looking at the statute’s overall effect.101 In this regard, it contended that § 2703 is concerned with the 92 Ibid., 18–19. 93 Ibid., 25. 94 Ibid., 20–8. 95 This was the conclusion reached on this point by the Magistrate Judge at first instance, ibid., 40. 96 See the Magistrate Judge’s ruling, ibid., 29. The government also argued that Microsoft is able to perform the actions of accessing, retrieving and exporting the data stored in its Dublin data-centre from its HQ in the United States. 97 Ibid., 28–9. 98 Ibid., 29. 99 Ibid., 39. 100 US Government’s Petition to the Supreme Court (n. 4), 12–14. 101 Ibid., 13–17 and 21–2. It derives authority for this proposition from the Supreme Court authorities of Morrison v National Australian Bank Ltd (n. 84), 267 and RJR Nabisco, Inc. v European Community, 136 S. Ct 2090 (2016), 2101.

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Enforcing Criminal Jurisdiction 405 act of disclosing data subject to an SCA warrant to the government rather than on privacy protection.102 Alternatively, the government asserted that, as any disclosure would occur in the United States, the material conduct would take place within US territory and, in its view, this showed the statute’s domestic application.103 Moreover, it reiterated the argument it advanced in the Court of Appeal—that an SCA warrant is similar to a subpoena in key respects, the most significant being that it generates an obligation to produce the required data irrespective of its location.104 It also refuted the Court of Appeal’s finding that Microsoft would be acting as its agent by obtaining the data from its Dublin data-centre and turning it over to the US authorities.105 Instead, the government claimed that Microsoft already was in lawful possession of the data because its operational policy, which led to the data being stored in Ireland, did not generate any privacy rights for its customer.106 In any event, it argued that as the act of turning over the data to the authorities would take place in the United States, and—because the data would be delivered pursuant to a probable-cause warrant—there can be no privacy incursion as the compelled disclosure was lawfully justified.107 In response, Microsoft argued that the Supreme Court should follow the approach adopted by the Appeals Court.108 Relying on the reasoning adopted in that decision, it restated its argument regarding the SCA’s proper focus and that the conduct in issue amounted to an impermissible extraterritorial application of the statute’s provisions.109 Further, it claimed that the government’s contention that the specific focus of § 2703 is on disclosure rather than on privacy protection is flawed.110 Instead, Microsoft observed that ss. 2701 and 2702 together provide the general position (i.e. that stored electronic communications are protected by privacy entitlements) while § 2703 provides a limited exception by permitting the disclosure of stored data to the authorities when a court has issued a search and seizure warrant.111 Consequently, it maintained that the meaning and function of § 2703 must be interpreted in the broader context of the operation of ss. 2701 and 2702. In any event, Microsoft asserted that § 2703 is not engaged because the SCA’s provisions can only be applied domestically and, as the relevant conduct occurs in Ireland, this provision is inapplicable, on the facts.112 Moreover, in its reply to the US government’s argument that Microsoft already lawfully possesses the data in question and, therefore, that the act of gathering it from the Dublin data-centre does not amount to an interference with its customer’s privacy rights,113 Microsoft reiterated the Court of Appeals ruling that such a claim ignores the duty that Microsoft owes as the custodian of such property.114 It contended that the government failed to appreciate that Microsoft’s control over the data in question may be regulated by data protection rules imposed by 102 US Government’s Petition to the Supreme Court (n. 4), 16–17, 19. 103 Ibid., 17. 104 Ibid., 23–4. 105 Ibid., 20. 106 Ibid., 17–20 and the US Government’s Reply in the Supreme Court case (n. 4), 6. 107 US Government’s Petition to the Supreme Court (n. 4). 108 Microsoft’s Brief in Opposition in the Supreme Court case (n. 4), 26–30. 109 Ibid., 10–14. 110 Ibid., 6. 111 Ibid., 6–7. See n 87 for the content of these provisions. 112 Ibid., 6–11. 113 Ibid., 32. 114 Ibid., 12 and 33.

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406 Stephen Allen the State in which the data-centre is situated.115 Finally, Microsoft raised the prospect that the extraterritorial activity mandated by the SCA warrant would result in a flagrant breach of international law because it would involve an intrusion upon Ireland’s territorial sovereignty, without its consent.116 The Supreme Court proceedings were halted due to Congress’s intervention. In particular, § 103(a)(1) of the CLOUD Act amended § 2701 of the SCA, by adding that: A [service provider] shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.

After the CLOUD Act came into force, the US authorities sought, and obtained, a new § 2703 SCA warrant and, as a result, the parties agreed that there was no outstanding dispute. In turn, the Supreme Court ruled that the proceedings were rendered moot as a consequence.117 Notwithstanding Congress’s late intervention in the Microsoft litigation, the judgments of the lower courts and the written and oral arguments made to the Supreme Court in this case have considerable illustrative value. They illuminate our understanding of the challenges posed by Cloud Computing for the investigation, and prosecution, of trans-border criminal activity. Moreover, its intervention does not close down the key issues explored in this chapter; rather it simply put them out of the reach of the US courts as far as the terms of the CLOUD Act are concerned. And, of course, there is no knowing how Congress’s specific foray into extraterritorial jurisdiction will be treated by other states—the jurisdictional consequences of the CLOUD Act will become apparent over time. The case’s wider significance was spotted by Svantesson when he pointed out, in response to the decision of the lower courts, that the respective positions of Microsoft and the US government, as to whether their particular dispute manifests an e xtraterritorial dimension, were diametrically opposed.118 To demonstrate their competing perspectives, he quoted from the US government’s brief prepared in connection with the Court of Appeals proceedings. It stated that: Relying on Section 432(2) of the Restatement (Third) of Foreign Relations, Microsoft argues that ‘[a] state’s law enforcement officers may exercise their functions in the 115 In this respect, Microsoft relied on Art. 48 of the EU’s General Data Protection Regulation, EU/679/2016, which had not entered into force by that time. Microsoft’s Brief in Opposition in the Supreme Court case (n. 4), 17. It provides that: ‘Any judgment of a court or tribunal . . . of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State . . . ’ 116 Ibid., 16–17. 117 See the Supreme Court’s judgment, 17 April 2018 (n. 4). 118 Dan Svantesson, Solving the Internet Jurisdiction Puzzle (Oxford University Press, 2017), 51.

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Enforcing Criminal Jurisdiction 407 territory of another state only with the consent of the other state’ . . . But requiring the disclosure of records by a U.S. company does not involve any enforcement activity by government personnel on foreign territory, which is the concern of that section.119

Svantesson suggests that the positions of the US government and Microsoft were, arguably, both correct.120 In particular, he observed that: It is true, as the Government says, that there is no enforcement activity on foreign territory. However, and this is important, there is an exercise of law enforcement functions on the territory of another state. In other words, the Government looks exclusively at the location from which jurisdiction is exercised (the United States). Microsoft also considers the extraterritorial effects and these effects occur in Ireland. In this way, the US Government gives extraterritoriality a narrow definition, while Microsoft gives it a broad definition.121

Here Svantesson is expressing the view that international law has no way of resolving this difference of opinion—it ‘simply does not tell us where the conduct in question takes place in situations such as that of the Microsoft Warrant case’.122 But while Svantesson may have accurately captured the positions of Microsoft and the US government as far as the issue of extraterritoriality is concerned, he has overlooked a serious error in the government’s understanding of the applicable law. It is correct that government officials would not necessarily be engaged in enforcement activity on another state’s territory but this is not the key test for establishing state responsibility as a matter of international law. The relevant measure was set out in Article 5 of the ILC’s Articles on State Responsibility. It provided that: The conduct of a person or entity which is not an organ of the State . . . but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.123

If Microsoft is compelled to access, retrieve, and export data to the United States, pursuant to the execution of a valid US warrant, this would trigger consideration of the matter of international responsibility, notwithstanding the fact that Microsoft is not an agent of the US government for other purposes.124 And this point remains unaffected by the fact of Congress’s involvement via the provisions of the CLOUD Act. The key question remains whether Microsoft would be exercising specific elements of governmental

119 Ibid. 120 Ibid., 52. 121 Ibid. 122 Ibid., 51. 123 Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the ILC (2001) Fifty-Third Session, A/56/10. 124 See International and EU Law Scholars amicus brief (n. 70), 8.

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408 Stephen Allen authority for a limited, or particular, purpose.125 An important component for the attribution of conduct to a state is the requirement that the private individual concerned is ‘empowered by law’ to undertake the activity in question.126 It would seem to be incontrovertible that Microsoft would be exercising governmental authority for the specific purpose of accessing and retrieving the data located in its Dublin data-centre and that it was authorized to carry out this task in accordance with US law, pursuant to a valid SCA warrant.127 Of course, in order for international responsibility to arise, it would also be necessary to establish that the conduct in question qualifies as a breach of international law.128 But it is hard to see how the exercise of enforcement jurisdiction in another state’s territory, without its consent, would not satisfy this requirement. Another interesting argument, which was advanced in the Microsoft Warrant case, and one that connects the themes explored in this chapter, is the way in which the US government sought to harness the normative essence of Article 18 production orders in support of its preferred interpretation of an SCA warrant insofar as its territorial scope is concerned.129 In particular, the government argued that Microsoft qualified as a valid recipient of a production order for the purposes of Article 18(1)(a) of the Budapest Convention.130 Accordingly, it claimed that Microsoft would be required to produce data in its possession, custody or under its control, even if that data is stored in an overseas location.131 However, when a service provider is ordered to produce data, which it holds, in effect, on trust for one of its customers, Article 18(1)(a) is inapplicable as such situations are governed by Article 18(1)(b) instead.132 This distinction is important because, as discussed earlier, service providers are only under an obligation to divulge subscriber information rather than content or traffic data in such cases.133 Clearly, the US government’s wide construction of Article 18 for the purpose of its argument regarding the ambit of SCA warrants has potential ramifications for the sovereignty and jurisdiction of other states—as, by and large, it would render MLAT processes redundant and Article 32 of the Budapest Convention a textual irrelevance.134 The significance of this argument is that it illustrates the potential difficulties with the Cybercrime Committee’s ambitious objective of using production orders as the

125 See James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge University Press, 2002), 43, para. 2; and James Crawford, State Responsibility: The General Part (Cambridge University Press, 2013), 126–32. 126 See Crawford, State Responsibility (n. 125), 132. 127 This argument could only work if the relevant conduct occurs in Ireland. 128 Art. 2 of the ILC’s Articles on State Responsibility provides that an internationally wrongful act occurs where conduct, which constitutes a breach of an international legal obligation, can be attributed to a particular state. 129 In this respect, such an argument is used to bolster its claim that an SCA warrant shares vital characteristics with a subpoena. 130 See Guidance Note No. 10 (Art. 18) (n. 28), para. 3.1. 131 See the US government’s Final Brief in the Supreme Court case (n. 4), 48–9. 132 See International and EU Law Scholars amicus brief (n. 70), 12, 15. 133 See Art. 18(3) and ibid. 134 Ibid., 13 and 18.

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Enforcing Criminal Jurisdiction 409 foundation of a robust new regulatory regime for dealing with the jurisdictional challenges presented by transnational criminality. The Microsoft Warrant litigation demonstrates—irrespective of the case’s ultimate outcome—that we must view potential instances of extraterritoriality by recourse to a holistic interpretation of international law. Svantesson complains that international law does not tell us where the material conduct—the accessing and retrieving of the suspect’s stored content data—occurs. Consequently, according to the thrust of his argument, it cannot determine whether the SCA is being applied on an extraterritorial basis or not. This may be a plausible reading of the situation if one looks to the international norms on jurisdiction alone. However, when we take the rules governing state responsibility into account things become much clearer as we begin to see that Microsoft would be acting as an agent of the US government for this purpose and, therefore, we are able to discern how an exercise of enforcement jurisdiction may arise in concrete cases. Unless we understand how the various rules and principles of international law work together to form a complete system of law,135 it is easy to underestimate the extent to which international law is capable of addressing complex legal problems.136

VII. Conclusion This chapter argued that the Cybercrime Committee’s preferred short-term option for addressing the jurisdictional challenges posed by unilateral trans-border activity—the national production order—is misconceived insofar as it seeks to legitimize the unilateral retrieval of data located within another state’s territory, in contravention of international law. In addition, the chapter showed how the US government’s claims in the Microsoft Warrant case created the circumstances by which the United States may be accountable for the enforcement of its jurisdiction in the territory of a State, without consent. It is notable that Congress’s involvement, by enacting the CLOUD Act, has not diminished this risk. Finally, this chapter demonstrated that current solutions to the problem of the loss of location, ones which seek to bypass the territorial conception of enforcement jurisdiction by reference to exceptional grounds, are unsustainable. Some readers may find the approach followed in this chapter to be unduly pessimistic, but I would suggest that there are good reasons to be cautious. Unilateral assertions of jurisdiction have a strong tendency to undermine international cooperation as they have the capacity to promote mistrust between states. Further, unmediated approaches to trans-border access invariably favour those states that have the power and resources to mount significant enforcement operations. Accordingly, they have potentially negative implications for the concepts of sovereign authority and sovereign equality in 135 For arguments in support of the claim that international law amounts to a complete system of law see e.g. Lauterpacht (n. 10). 136 See Ch. 15 on state responsibility by Kimberly N. Trapp in this Handbook.

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410 Stephen Allen general. Nonetheless, the scale of extraterritorial activity prompted by the advent of cyberspace constitutes a truly global phenomenon; consequently, territorialized approaches to the regulation enforcement jurisdiction are bound to fall short. Despite this, it is hard to see how unilateral approaches to a problem shared by all states will prove to be the best way forward. Clearly, multilateral solutions, or networks of bilateral arrangements, have the best chance of succeeding as they require closer cooperation between national criminal justice regimes. This kind of coordination can only be achieved through the development of global best practices and the conclusion of comprehensive and pragmatic treaty arrangements designed to tackle cross-border criminal activities effectively, irrespective of whether they manifest a cyber-dimension or not.

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Pa rt V

C ON T E X T UA L I Z I NG J U R ISDIC T ION SU BSTA N T I V E A ND IN ST IT U T IONA L I S SU E S

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Chapter 17

Th e ‘ J ’ Wor d

Driver or Spoiler of Change in Human Rights Law? Wouter Vandenhole

I. Introduction

414

II. Jurisdiction in Human Rights Law

415

III. Extraterritorial Jurisdiction

417

IV. Beyond Jurisdiction?

426

V. By Way of Conclusion: Is Jurisdiction Just Another Word?

429

III.1. Meaning III.2. Scope III.3. Concurrent Jurisdiction: Multiple Duty-Bearers

IV.1. Economic, Social, and Cultural Rights IV.2. Non-State Actors

417 423 425

426 428

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414 Wouter Vandenhole

I. Introduction At the time of the drafting of some of the core human rights treaties (including the European Convention of Human Rights (ECHR))1 and for a considerable time after their adoption, jurisdiction was not much attention paid to. For slightly less than two decades now, however, jurisdiction has been at the heart of debates on extraterritorial human rights obligations. The debate was by and large triggered by the European Court of Human Rights’ (ECtHR) inadmissibility decision in the Banković case. The Banković ruling was mainly a spoiler of change in human rights: the exceptionality of extraterritorial jurisdiction was emphasized; the leads for extraterritorial jurisdiction were narrowly defined; and extraterritorial jurisdiction was suggested to be limited to the legal space of the Council of Europe.2 In the ECtHR’s subsequent case law, jurisdiction has become gradually less of a direct spoiler of change towards greater acceptance of extraterritorial human rights obligations, but inherent limitations remain. A more favourable and progressive approach has been taken by the Inter-American Commission on Human Rights (IACmHR) and the Human Rights Committee (HRC). More recent human rights treaty negotiations show strong resistance on the part of a majority of the States Parties to accept a broader notion of jurisdiction as a driver for change in human rights law, towards mainstream acceptance of extraterritoriality beyond narrowly constructed notions of control. Moreover, the 1966 International Covenant on Economic, Social and Cultural Rights has no jurisdiction clause. It should therefore not come as a surprise that in the leadup to the 2011 Maastricht Principles on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights, there was quite some reluctance to include a notion of jurisdiction. Eventually, jurisdiction was included, albeit as part of a major attempt in a joint effort of academia and civil society to imbue the concept with an expanded meaning. In discussions to extend human rights obligations beyond states to non-state actors, the concept of jurisdiction to delineate a non-state actor’s obligations has not been judged as appropriate. At the same time, it is clear that a proxy or functional equivalent to jurisdiction is needed. In the latter discussions too, jurisdiction tends to be a spoiler of change. Clearly, the qualification of jurisdiction as a driver or spoiler of change is a normative assessment based on an underlying argument that change is needed in human rights law and, more particularly, that human rights law is in need of a greater acceptance of extraterritorial obligations. That argument, in turn, builds on two submissions. The first is that reality is now such that states engage frequently in extraterritorial conduct, or take measures with extraterritorial effects, which impact (negatively) on human rights 1 Barbara Miltner, ‘Revisiting Extraterritoriality after Al-Skeini: The ECHR and its Lessons’, Michigan Journal of International Law 33 (2011–12): 693. 2 Bankovic and Others v Belgium and Others, App. no. 52207/99, ECtHR, 12 December 2001, paras. 59–82.

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The ‘J’ Word: Driver or Spoiler of Change 415 outside their borders. The second submission is that human rights law must be able to speak to reality, which means in this context that it must be able to engage with extraterritorial conduct or effects. Contrary to Wilde’s reading, this is not just about addressing a normative gap in order to save human rights law from marginality.3 The underlying point is that human rights law has a role to play as a check on power, so that the extraterritorial expansion of power has to be matched with an extraterritorial application of human rights law.4 This position was echoed by the IACmHR in a 2010 Report on an inter-state complaint: it argued that ‘human rights are inherent in all human beings and are not based on their citizenship or location’,5 and that legal lacunae are to be avoided.6 In what follows, Section II briefly spells out the functions of jurisdiction in human rights law. Section III examines the meaning and scope of extraterritorial jurisdiction. Section IV looks into concurrent jurisdiction. Section V maps some areas of contestation of the notion of jurisdiction. Section VI concludes.

II. Jurisdiction in Human Rights Law Jurisdiction plays a particular role in human rights law, which distinguishes it from its function in public international law. In public international law, jurisdiction determines the legality of action.7 In human rights law, jurisdiction is not about the legality of action, but rather the question of whether an obligation to observe human rights applies towards certain individuals. In other words, jurisdiction provides ‘tests for when the [extraterritorial] obligations would be triggered’8 and hence defines the scope of application ratione personae: towards which rights-holders does a State Party hold obligations? Within human rights law, a reference to jurisdiction features explicitly in treaties on civil and political rights, such as the International Covenant on Civil and Political Rights

3 Ralph Wilde, ‘Dilemmas in Promoting Global Economic Justice through Human Rights Law’, in N. Bhuta (ed.), The Frontiers of Human Rights: Extraterritoriality and Its Challenges (Oxford: Oxford University Press, 2016), 127–76, 133. 4 For a fuller development of this point, see Wouter Vandenhole, Gamze E. Türkelli, and Rachel Hammonds, ‘New Human Rights Duty-Bearers: Towards a Re-Conceptualisation of the Human Rights Duty-Bearer Dimension’, in Anja Mihr and Mark Gibney (eds.), Handbook of Human Rights (London: Sage, 2013), 1035–8. 5 Franklin Guillermo Aisalla Molina and Ecuador v Colombia, IACmHR, adm, Report no. 112/10, para. 91; cf. Coard and Others v United States, IACmHR Report no. 109/99, 29 September 1999, para. 37. See also Douglas Cassel, ‘Extraterritorial Application of Inter-American Human Rights Instruments’, in Fons Coomans and Menno Kamminga (eds.), Extraterritorial Application of Human Rights (Antwerp: Intersentia, 2004), 175–82. 6 Franklin Guillermo Aisalla Molina and Ecuador v Colombia (n. 5), para. 98. 7 See e.g. Marko Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (New York: Oxford University Press, 2011), 23–6. 8 Wilde (n. 3), 130.

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416 Wouter Vandenhole (ICCPR, 1966) and the ECHR (1950), as well as, for example, in the Convention on the Rights of the Child (CRC, 1989). On the other hand, the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) and the Convention on the Rights of Persons with Disabilities (CRPD, 2006) do not contain a reference to jurisdiction. That absence of any reference to jurisdiction could be read to mean that no jurisdictional limitations apply.9 In addition, explicit and repeated references to international assistance and cooperation in the ICESCR, the CRC, and the CRPD have been interpreted to reinforce the universal scope of application. As Salomon argues: the obligations of international cooperation for economic, social and cultural rights require something beyond obligations derived from the ‘extraterritorial’ reach of a human rights convention. They call for proactive steps through international cooperation in securing economic, social and cultural rights globally rather than obligations attached reactively, i.e. based on the potential impact of a state’s activities on the people in foreign countries.10

In yet another reading, upheld by the International Court of Justice in its Advisory Opinion on the Palestinian Wall, the territorial scope of the obligations has been considered so self-evident that no explicit reference to jurisdiction was deemed necessary.11 For the sake of completeness, it is worth mentioning that jurisdiction has at least two other functions in human rights law: it may define the competence of human rights monitoring bodies and courts, and it may spell out the obligation incumbent on states to exercise universal jurisdiction. The latter refers to an obligation or option to prosecute certain human rights violations that occur outside a state’s territory, but where there exists a sufficient link to the state, through, for example, the nationality or place of habitual residence of the perpetrator, the presence of the perpetrator on the territory, or the nationality of the victim.12 These usages of jurisdiction in human rights law will not be further discussed here. 9 Olivier De Schutter et al., ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’, Human Rights Quarterly 34(4) (2012): 1084–169, 1102. 10 Margot E Salomon, Global Responsibility for Human Rights (Oxford: Oxford University Press 2007), 76. 11 Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, 9 July 2004, para. 112. The ICJ has suggested in passim that the absence of a jurisdictional clause in the ICESCR might be explained by the fact that it guarantees rights ‘which are essentially territorial’. See also Ralph Wilde, ‘Human Rights Beyond Borders at the World Court: The Significance of the International Court of Justice’s Jurisprudence on the Extraterritorial Application of International Human Rights Law Treaties’, Chinese Journal of International Law 12(4) (2013): 639–77. 12 See Art. 4 of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 25 May 2000. In the Belgium v Senegal case, the ICJ affirmed the obligations of states parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to either prosecute or extradite. Questions Concerning the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, 20 July 2012, http://www.icj-cij.org/ docket/files/144/17064.pdf.

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The ‘J’ Word: Driver or Spoiler of Change 417

III. Extraterritorial Jurisdiction III.1. Meaning Although the ECtHR was not the first human rights monitoring body to flesh out the meaning of the notion of jurisdiction, it has developed the most extensive jurisprudence to date, albeit often of a rather restrictive nature, so that extraterritorial jurisdiction remains exceptional. The settings in which the notion of (extraterritorial) jurisdiction has been discussed are diverse, and range from occupation or support to a puppet regime in bilateral conflicts (such as in Northern Cyprus; Transnistria or Nagorno-Karabakh) to bombings, military operations with boots on the ground (in particular in Iraq), abduction by security forces,13 rescue operations on the high seas,14 and extraterritorial effects of acts that take place on a state’s territory (in particular shooting across the border).15 Article 1 ECHR reads: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ The ECtHR’s basic take on the notion of jurisdiction is that jurisdiction is primarily territorial, and exceptionally extraterritorial. That position may in itself be seen as a spoiler of change, since it makes extraterritorial jurisdiction exceptional. The IACHR has argued in a more extraterritorial-friendly vein that the ‘bases of jurisdiction are not exclusively territorial’16 so that a state is also responsible for ‘acts and omissions committed wherever they exercise jurisdiction’.17 More challenging is to identify when the exceptional, extraterritorial, understanding applies in the view of the Strasbourg Court.18 It meanwhile seems to have used at least four different tests or leads to establish extraterritorial jurisdiction (personal, spatial, checkpoint jurisdiction, and causeand-effect), and it remains unclear how they relate to each other and which ones may be drivers of change. Whereas the Court did not engage with this question for the first time in the Banković case, it was certainly the Banković case that stirred the academic debate on the question of extraterritorial jurisdiction19 and became a politically sensitive question. The interpretation given to jurisdiction by the Court in that case was not particularly 13 Öcalan v Turkey, App. No. 46221/99, ECtHR (GC), Judgment of 12 May 2005, para. 91. 14 Hirsi Jamaa v Italy, ECHR 2012-II 97, paras. 76–81. 15 Case references can be found further in this chapter. 16 Franklin Guillermo Aisalla Molina and Ecuador v Colombia (n. 5), para. 91. 17 Ibid., para. 90. 18 For extensive discussion of the case law, see inter alia Milanovic (n. 7); Michal Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of Human Rights Treaties (Antwerp: Intersentia, 2009), 442. 19 A conference and edited volume was by and large devoted to the case and its implications, see Fons Coomans and Menno Kamminga (eds.), Extraterritorial Application of Human Rights (Antwerp: Intersentia, 2004). Early literature on jurisdiction includes also Hugh King, ‘The Extraterritorial Human Rights Obligations of States’, Human Rights Law Review 9(4) (2009): 521–56.

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418 Wouter Vandenhole helpful to expand the extraterritorial reach of human rights law.20 The Court unequivocally rejected a cause-and-effect understanding of jurisdiction—that is, that ‘anyone adversely affected by an act imputable to a Contracting State, wherever in the world that act may have been committed or its consequences felt, is thereby brought within the jurisdiction of that State’.21 In its 2011 Al-Skeini judgment, the Grand Chamber of the ECtHR revisited the issue, and identified two instances of exercise of extraterritorial jurisdiction: (1) effective control over territory, and (2) physical power or control over persons.22 The first has been labelled the spatial model, and the latter the personal model of jurisdiction.23 Effective control over an area may be exercised directly (through military action of a state’s own armed forces) or indirectly (through a subordinate local administration). No detailed control over that subordinate local administration is required. Key is that local administration survives thanks to the military and other support of the extraterritorial state concerned. In a number of cases about Transnistria, the Court has argued that the ‘level of dependency on Russian support provides a strong indication that Russia continues to exercise effective control and a decisive influence’ over the authorities of the break-away republic.24 Direct effective control over an area is primarily a matter of the strength of the military presence.25 In case of indirect control, in addition to military involvement, economic and political support are of particular relevance26—such as issuing of passports for residents, the interchange of politicians, financial support27 or the delivery of free or highly subsidized gas, payment of pensions, and other financial aid.28 In Chiragov and Others v Armenia concerning the situation in Nagorno-Karabakh and surroundings, the Court found that Armenia had been ‘significantly involved’ in the conflict through its military presence and provision of military equipment and expertise. That military support was held to have been ‘decisive for the conquest of and continued control over the territories in issue’.29 In combination with political and economic dependence of the Nagorno-Karabakh Region, this led the Court to conclude that Armenia exercised effective control over the area and hence exercised jurisdiction.30 20 See for a detailed analysis of Banković and the emergence of a control over persons test in its a ftermath, Michal Gondek, ‘Extraterritorial Application of the European Convention on Human Rights: Territorial Focus in the Age of Globalization?’, Netherlands International Law Review 52(3) (2005): 349–87. 21 Banković and Others v Belgium and Others, ECHR 2001-XII 333 (adm), para. 75. For a discussion of this case, see inter alia Dominic Mcgoldrick, ‘Extraterritorial Application of the International Covenant on Civil and Political Rights’, in Fons Coomans and Menno Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (Antwerp: Intersentia 2004), 41–73. This rejection was reiterated in Medvedyev and Others v France, ECHR 2010-III 61, para. 64. 22 Al-Skeini and Others v UK, ECHR 2011-IV 99, paras. 130–42. 23 Milanovic (n. 7), 127, 73. 24 Mozer v Moldova and Russia, App. No. 11138/10, ECtHR, 23 February 2016, para. 110. 25 Al-Skeini and Others v UK, ECHR 2011-IV 99, para. 139. 26 Chiragov and Others v Armenia, App. No. 13216/05, ECtHR, 16 June 2015, para. 169. 27 Ibid., paras. 181–5. 28 Catan and Others v Moldova and Russia, ECHR 2012-V 309, para. 121. 29 Chiragov and Others v Armenia (n. 26), para. 180. 30 Ibid., paras. 180–6.

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The ‘J’ Word: Driver or Spoiler of Change 419 State agent authority and control over individuals that amounts to the exercise of extraterritorial jurisdiction occurs in three hypotheses: through the acts of diplomatic and consular agents; through the exercise of public powers normally to be exercised by the government; and through the use of force of state agents. The latter may happen by taking an individual in custody or by running a prison on the territory of another state, or by intercepting a ship in international waters. The decisive element is the ‘exercise of physical power and control over the person in question’, rather than the control exercised over the building or vehicle in which the person was.31 The spatial and personal model of jurisdiction do not go uncontested, within and outside the Court. Within the Court, Judge Rozakis argued in a separate opinion to the Al-Skeini judgment that there is only one ground of extraterritorial jurisdiction— that is, state authority and control. In his view, effective control over an area is a particular manifestation of state authority and control. Judge Bonello rejected the distinction between territorial and extraterritorial jurisdiction, and suggested a functional test instead, based on authority and control. In scholarly comments, it has been argued that the two models may never have been ‘meaningfully separate’, and/or that they ‘collapse in practice’.32 In any event, some of the most heavily criticized rulings in the Banković case were softened and, in that sense, the Al-Skeini case has been to some extent a driver of change. It clarifies that full control over territory is not required for the extraterritorial exercise of jurisdiction, authority and control over individuals suffices (the so-called personal model). Moreover, the Convention rights can be divided and tailored.33 Also, the Court no longer suggests that the applicability of the ECHR is limited to the Council of Europe: ‘the importance of establishing the occupying State’s jurisdiction in . . . cases [in which not holding the occupying State accountable would result in a vacuum of protection within the legal space of the Convention] does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe member States’.34 But beyond these nuances, important as they may be, it is debatable whether the Al-Skeini case represents a ‘watershed’.35 For one, it still falls short of covering all instances in which extraterritorial jurisdiction could be expected to arise, given the degree of involvement of a foreign state. Second, it is debatable whether the legal consequences attached to the spatial and personal model are driving or spoiling change. With the exception of the situations in which a state had militarily intervened and continues to keep a puppet regime in power (namely Northern 31 Al-Skeini and Others v UK (n. 25), paras. 133–6. 32 Lea Raible, ‘The Extraterritoriality of the ECHR: Why Jaloud and Pisari Should Be Read as Game Changers’, European Human Rights Law Review 2 (2016): 164–5. 33 Al-Skeini and Others v UK (n. 25), para. 137. In Jaloud v The Netherlands, App. No. 47708/08, ECtHR, 20 November 2014, para. 142, it held explicitly that ‘the status of “occupying power” within the meaning of Article 42 of the Hague Regulations, or lack of it, is not per se determinative’, and referred thereby to its findings with regard to the exercise of jurisdiction by Turkey in Northern Cyprus and by Russia in Transnistria. 34 Al-Skeini and Others v UK (n. 25), para. 142. 35 Anna Cowan, ‘A New Watershed? Re-Evaluating Bankovic in Light of Al-Skeini’, Cambridge Journal of International and Comparative Law 1(1) (2012): 213–27.

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420 Wouter Vandenhole Cyprus, Transnistria, and Nagorno-Karabakh), the ECtHR has been reluctant to accept that a foreign state exercises effective control over an area, even as an occupying power. For instance, in the Al-Skeini case, the United Kingdom had assumed the security role in the province of Al-Basrah during the period of occupation of Iraq. However, the Court did not accept that the United Kingdom exercised effective control over the area.36 Instead, it found that the United Kingdom ‘assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government’, and hence ‘exercised authority and control over individuals killed in the course of such security operations’.37 Hence, the United Kingdom only had to secure the Convention rights relevant to the situation of the individuals concerned (i.e. the right to life). It is hard to see this restrictive approach to the scope of extraterritorial jurisdiction as a driver of change. Moreover, there are no legal-technical reasons for such a restrictive approach. The reason behind it seems to be political rather than legal. States have made clear that a broad application of extraterritorial jurisdiction would make their participation in peace operations extremely difficult and unlikely, and the Court seems willing to go along with that argument. Two checkpoint cases, the 2014 Grand Chamber judgment in Jaloud v the Netherlands and the subsequent chamber judgment in Pisari v The Republic of Moldova and Russia were again welcomed as ‘game changers’38 and a ‘silent revolution’.39 Raible has suggested a reading in which the ECtHR is ‘no longer relying on the separation of the different models of extraterritorial jurisdiction’40, and hence saw them as ‘a radical departure from the previous case-law’.41 Whereas it may be true that the Court is no longer explicitly applying the binary personal and spatial model of jurisdiction, I am not convinced that these cases have been a strong driver for change towards greater acceptance of extraterritorial jurisdiction. As Raible admits, she only suggests a potential, alternative reading, not a conclusive and inevitable interpretation.42 Moreover, the introduction of ‘the exercise of public powers’, arguably a criterion ‘that is not very obviously connected to either the personal or the spatial model of extraterritoriality’,43 has not dramatically expanded extraterritorial jurisdiction, although it may give it a more solid theoretical underpinning.44 Even more so, Xenofontos’s assessment that Jaloud’s 36 Judge Bonello in his concurring opinion to the contrary suggests a rebuttable presumption that an occupying power has authority and control over the occupied territory (para. 24). 37 Al-Skeini and Others v UK (n. 25), para. 149. 38 Raible (n. 32), 161–8. 39 Lea Raible, ‘A Silent Revolution? The Extraterritoriality of the ECHR in Jaloud v Netherlands’, Rights! (2015). 40 Raible (n. 38), 161. 41 Ibid., 165. 42 Ibid., 161–2. 43 Ibid., at 164. 44 Raible suggests it to mean ‘a potential for control and applying directing rules’ (ibid., 168) or ‘power and proxies’, which she considers to be a thinner interpretation of power than that of Besson (ibid., 164). Besson has put forward that jurisdiction is about de facto legal and political authority, and consists of three constitutive elements: not only effective power and overall control, but also an appeal for compliance. The latter is also referred to as the normative-guidance element. Key to her argument is that jurisdiction cannot be reduced to effective and overall control only, but needs this normative-guidance element of reasongiving or an appeal for compliance. In building her argument, she strongly draws on democratic theory, in which affectedness is not enough, but where normative subjectedness is required. Besson submits that the ECtHR’s case law endorses these three constitutive elements. S. Besson, ‘The Extraterritorialiy of the

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The ‘J’ Word: Driver or Spoiler of Change 421 checkpoint test for jurisdiction, ‘leaves the door open for establishing the ECHR States’ jurisdiction in aerial bombardments . . . or targeted killings by drones in future operations’45 seems overtly optimistic and premature. The ‘power to target (and kill) an individual’ is not so easily equated with exercising physical power and control, as Xenofontos seems to suggest. So, neither the reading of Jaloud as the introduction of a new extraterritorial jurisdiction test (‘exercise of public powers’) nor the broad interpretation of power and control over individuals have been major drivers of change in the extraterritoriality of human rights law. This brings us to the fourth extraterritorial jurisdictional test, namely the ‘cause and effect’ approach. Xenofontos has suggested that Jaloud may be seen as a ‘renaissance of the “cause and effect” approach to jurisdiction’.46 Whereas I remain to be convinced that ‘the new “checkpoint” test for the jurisdiction . . . significantly expanded the scope of extraterritorial application of the ECHR’,47 it may be read indeed as a small step towards a cause-and-effect approach to extraterritorial jurisdiction. The cause-and-effect approach can mainly be found in the ECtHR’s framing of extraterritorial jurisdiction in terms of extraterritorial effects: ‘While a State’s jurisdictional competence is primarily territorial, the concept of jurisdiction within the meaning of Article 1 of the Convention is not restricted to the national territory of the High Contracting Parties and the State’s responsibility can be involved because of acts and omission of their authorities producing effects outside their own territory.’48 In the Andreou case, Turkish armed forces in the Cypriot area under their control opened fire on the crowd on the other side of the Turkish–Cypriot ceasefire line and wounded a number of people. As this firing was the direct and immediate cause of the injuries, the Court argued ‘that the applicant should be regarded as “within [the] jurisdiction” of Turkey within the meaning of Article 1 of the Convention’, ‘even though the applicant had sustained her injuries in territory over which Turkey exercised no control’.49 Such a cause and effect50 or ‘functional’51 interpretation of jurisdiction can be a stronger driver of change towards broad extraterritorial jurisdiction, and is therefore to European Convention on Human Rights: Why Human Rights Depend on Jurisdiction and What Jurisdiction Amounts To’, Leiden Journal of International Law 25 (2012): 857–84, 872–3. 45 Stefanos Xenofontos, ‘Recent Developments in the Extraterritorial Scope of Application of the ECHR in the Aftermath of Jaloud v The Netherlands [2014]’, Legal Issues Journal 4 (2016): 119, 123. 46 Ibid., 125. 47 Ibid., 126. 48 Chiragov and Others v Armenia (n. 26), para. 167. This wording is reminiscent of the earlier position of the Court in the case of Loizidou v Turkey, where it held that the concept of jurisdiction is not restricted to the national territory, and that the responsibility of states can be engaged because of acts ‘which produce effects outside their own territory’ (Loizidou v Turkey (prel. objections) ECHR 1995-A310, para. 62). 49 Andreou v Turkey, App. No. 45653/99, ECtHR, 27 October 2009, para. 25. 50 Scheinin has defended a ‘facticity creates normativity’ approach, see Martin Scheinin, ‘Extraterritorial Effect of the International Covenant on Civil and Political Rights’, in Fons Coomans and Menno Kamminga (eds.), Extraterritorial Application of Human Rights Treaties (Antwerp: Intersentia 2004), 73–82. 51 Thomas Gammeltoft-Hansen, ‘Growing Barriers: International Refugee Law’, in Mark Gibney and Sigrun Skogly (eds.), Universal Human Rights and Extraterritorial Obligations (Philadelphia: University of Pennsylvania, 2010), 55–81, 77–81.

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422 Wouter Vandenhole be welcomed.52 This approach is not without its critics though, not only within the ECtHR itself 53 but also within the scholarly community. Raible has argued on rather theoretical grounds that ‘saying that one can create obligations under the Convention by violating them is simply absurd’.54 The cause-and-effect approach to extraterritorial jurisdiction also finds support in the case law of other human rights enforcement bodies, in particular the HRC and the IACmHR. At first sight, the wording of Art. 2.1 ICCPR might be more prohibitive than the wording in other treaties in allowing for extraterritorial jurisdiction. It reads: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant . . . ’ One reading could be to understand the ‘and’ conjunctively—that is, that the obligations under the ICCPR only extend to those individuals who are on the territory of the State Party and also within its jurisdiction. Such a reading would suggest that some individuals on a state’s territory may not fall within that state’s jurisdiction (an argument sometimes used by states with regard to undocumented migrants).55 The HRC has opted for a disjunctive reading: the ICCPR applies not only with regard to individuals on a state’s territory (territorial jurisdiction), but also when they are otherwise subject to its jurisdiction (extraterritorial jurisdiction). In the López Burgos case about the abduction of an Uruguayan national by Uruguayan officials from Argentinean territory, the HRC argued that the reference to jurisdiction was ‘to the relationship between the individual and the State in relation to a violation of any of the rights set forth in the Covenant, wherever they occurred’.56 The nature of that relationship was clarified in Munaf, where the HRC submitted that a state ‘may be responsible for extraterritorial violations of the Covenant, if it is a link in the causal chain that would make possible violations in another jurisdiction. Thus, the risk of an extra-territorial violation must be a necessary and foreseeable consequence and must be judged on the knowledge the State party had at the time . . .’57 A state may also be ‘considered responsible as a result of a failure to exercise reasonable due diligence over the relevant extraterritorial activities of . . . corporations [that are under that State’s jurisdiction]’.58 In line with this 52 Cf. Scheinin (n. 50), 80: ‘facticity creates normativity’; Rick Lawson, ‘Life after Bankovic: On the Extraterritorial Application of the European Convention on Human Rights’, in Fons Coomans and Menno Kamminga (eds.), Extraterritorial Application of Human Rights (Antwerp: Intersentia 2004), 83–124, 86: ‘control entails responsibility’; Judge Bonello in his separate opinion in Al-Skeini and Others v UK (n. 26). 53 As reflected most explicitly in the majority opinion in Banković. 54 Raible argues that this position conflates power with its manifestation, or ‘the presence of jurisdiction with the violation of a human right’. Raible (n. 38), 166. 55 The drafting history of the CRC is telling in this regard, see Gondek (n. 18), 116. 56 López Burgos v Uruguay, App. No. 52/1979, HRC, 29 July 1981, UN Doc. CCPR/C/13/D/52/1979, para. 12.2. 57 Mohammad Munaf v Romania, App. No. 1539/2006, HRC, 13 July 2009, UN Doc. CCPR/C/96/ DR/1539/2006, para. 14.2. 58 Basem Ahmed Issa Yassin and Others v Canada, App. No. 2285/2013, HRC, 26 October 2017 (adm), UN Doc. CCPR/C/120/D/2285/2013, para. 6.7.

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The ‘J’ Word: Driver or Spoiler of Change 423 approach, the HRC has accepted that the USA is exercising jurisdiction whenever targeted killings are conducted abroad through the use of drones,59 thereby applying— albeit implicitly—a cause-and-effect approach to jurisdiction. The IACmHR too has clearly adopted a cause-and-effect understanding of extraterritorial jurisdiction:60 ‘the following is essential for the Commission in determining jurisdiction: the exercise of authority over persons by agents of a State even if not acting within their territory, without necessarily requiring the existence of a formal, structured and prolonged legal relation in terms of time to raise the responsibility of a State for acts committed by its agents abroad’.61 What matters is ‘whether there is a causal nexus between the extraterritorial conduct of the State and the alleged violation’.62 In sum, the J-word has been given at least four meanings in human rights law, and most tend to limit the extraterritorial reach of the treaties. The ECtHR’s interpretations have dominated the debate. After an initial very ‘spoiling’ reading of jurisdiction in the Banković admissibility decision, it has drifted somewhat between a spatial, personal, and checkpoint model of jurisdiction, each of which tends to inhibit rather than to further extraterritorial jurisdiction beyond the exceptional. The HRC and the IACmHR seem to be more inclined to a systematic cause-and-effect notion of jurisdiction, whereas the ECtHR has so far only occasionally resorted to that test. The latter reading of jurisdiction pushes the concept more in the direction of a driver of change.

III.2. Scope An expansive and open reading of the extraterritorial concept of jurisdiction should be matched by a variable scope of relevant rights and obligations incumbent on the foreign state, commensurate to the degree of control that is exercised.63 Abundant support for a ‘ “gradual” approach to the notion of “jurisdiction” ’ can be found in the literature.64 This approach was also supported by Judge Bonelli in his separate opinion in the Al-Skeini case: Extraterritorially, a Contracting State is obliged to ensure the observance of all those human rights which it is in a position to ensure. It is quite possible to envisage situations in which a Contracting State, in its role as an Occupying Power, has well 59 HRC, Concluding Observations USA, UN Doc. CCPR/C/UA/CO/4, 23 April 2014, para. 9. 60 Franklin Guillermo Aisalla Molina and Ecuador v Colombia (n. 5), para. 98. 61 Ibid., para. 99. 62 Ibid. 63 Cf. Wouter Vandenhole, ‘Obligations and Responsibility in a Plural and Diverse Duty-Bearer Human Rights Regime’, in Wouter Vandenhole (ed.), Challenging Territoriality in Human Rights Law: Building Blocks for a Plural and Diverse Duty-Bearer Regime, Routledge Research in Human Rights Law (London: Routledge, 2015), 115–35, 124. 64 Lawson (n. 52), 120; De Schutter et al. (n. 9), 1108; Cedric Ryngaert, ‘Jurisdiction: Towards a Reasonableness Test’, in Malcolm Langford et al. (eds.), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (Cambridge: Cambridge University Press, 2013), 192–211, 210–11.

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424 Wouter Vandenhole within its authority the power not to commit torture or extrajudicial killings, to punish those who commit them and to compensate the victims—but at the same time that Contracting State does not have the extent of authority and control required to ensure to all persons the right to education or the right to free and fair elections: those fundamental rights it can enforce would fall squarely within its jurisdiction, those it cannot, on the wrong side of the bright line.65

The ECtHR introduced a division and tailoring of extraterritorial obligations in conjunction with the personal and spatial model of jurisdiction. The jury is out on whether that division and tailoring of extraterritorial obligations is driving or spoiling change. On a positive note, the spatial model implies that ‘the entire range of substantive rights’ within that area under its control are to be guaranteed.66 As flagged in the previous section, the Court has been very reluctant to apply the spatial model, even in instances of occupation. If state agent authority and control is exercised over individuals, the extraterritorial state only has to secure the rights that are ‘relevant to the situation of that individual’.67 In the personal model, the scope of rights may at first sight seem to be limited to some rights, typically the right to life, the prohibition of torture, and the right to liberty, but there is no reason why it could not also imply the right to property or to respect for private and family life, for example. It is not very clear what the scope of rights is under checkpoint and cause-and-effect jurisdiction but, so far, the focus has been on the right to life. The IACmHR, in its cause-and-effect interpretation of jurisdiction, has likewise accepted that the scope of the obligations corresponds to the extent to which jurisdiction is exercised—namely, when a state only temporarily exercises jurisdiction, in the framework of a cross-border operation, it does not necessarily incur the entire range of obligations: the obligations apply only for the period of time that its agents ‘interfere in the lives of persons who are on the territory of the other State’, and with regard to the relevant rights only (in casu their right to life and humane treatment).68 Regrettably, the Commission focused on the period that the Colombian armed forces were physically present in the bombed camp in Ecuador,69 to the omission of the bombing itself. It remains unclear, therefore, what a state’s scope of rights and obligations may be in case of bombing of the territory of another state. In my view, potentially every right may be at stake, and at least negative obligations with regard to all applicable rights would apply. In 65 Al-Skeini and others v UK (n. 25), concurring opinion of Judge Bonello, para. 32. 66 Ibid., para. 138. 67 Ibid., para. 137. This line of reasoning clearly deviates from the Court’s earlier position in 2001, when it held that the positive obligation to secure the rights and freedoms in the ECHR cannot ‘be divided and tailored in accordance with the particular circumstances of the extra-territorial act in question’ (Banković and Others v Belgium and Others (n. 21), para. 75). In that admissibility decision, the Grand Chamber equally rejected the argument ‘that the limited scope of the airspace control only circumscribed the scope of the respondent States’ obligation to protect the applicants and did not exclude it’ (para. 76). 68 Franklin Guillermo Aisalla Molina and Ecuador v Colombia (n. 5), para. 100. 69 Ibid., para. 102.

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The ‘J’ Word: Driver or Spoiler of Change 425 addition, some positive obligations of prevention (proactively) and investigation (reactively) may apply. Lawson has suggested an obligation to ‘take “measures within the scope of their powers which, judged reasonably, might have been expected” to avoid violations of the individual’s rights’.70 A similar due diligence standard has been suggested by Ryngaert (albeit in relation to economic, social and cultural rights).71 In sum, an expansive, cause and effect reading of extraterritorial jurisdiction goes hand in hand with a variable scope of applicable rights and obligations. Which rights and obligations apply will depend on the facts of the case. Such a factual assessment should not be unduly restrictive, though, either with regard to the rights at stake or the nature of the obligations.

III.3. Concurrent Jurisdiction: Multiple Duty-Bearers Inevitably, when questions of extraterritorial jurisdiction arise, at least two states are involved: the territorial state and a foreign state. Very often, more than two states may be involved—for example, in case of military interventions or occupation by a coalition of states. It seems only logical that if one accepts a cause-and-effect interpretation of (extraterritorial) jurisdiction, which will cause more than one state to exercise jurisdiction, concurrent jurisdiction is also accepted. The ECtHR has so far dealt with two scenarios: the hypothesis of the involvement of two states with territorial control, presumed or real (spatial jurisdiction), and the hypothesis of two states exercising checkpoint jurisdiction. The ECtHR’s case law is most developed with regard to instances of spatial jurisdiction, as it plays out in Transnistria. In these cases, the complaint has been lodged against both states involved, namely the territorial state (Moldova) and the foreign state (Russia), which both happen to be members of the Council of Europe and States Parties to the ECHR. With regard to the foreign state, the spatial model of jurisdiction implies that that state exercises control over the area, and hence that it is under an obligation to guarantee the full range of rights. With regard to the territorial state, the presumption applies that jurisdiction is exercised by a territorial state throughout its territory.72 That ‘presumption may be limited in exceptional circumstances, particularly where a State is prevented from exercising its authority in part of its territory’ (e.g. due to military occupation).73 Nonetheless, positive obligations remain to ‘take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention’.74 These positive obligations are twofold: they relate to the re-establishment of control over the territory, as an expression of jurisdiction, and to specific measures to 70 Lawson (n. 52), 120. 71 Ryngaert (n. 64). 72 Ilaşcu and Others v Moldova and Russia, ECHR 2004 VII 179, para. 312. Cf. Sargsyan v Azerbaijan, App. No. 40167/06, ECtHR, 16 June 2015, paras. 126–31. 73 Ilaşcu and Others v Moldova and Russia (n. 72), para. 312. 74 Ibid., para. 331.

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426 Wouter Vandenhole ensure respect for the rights of the individuals concerned (e.g. in case of deprivation of liberty, efforts to secure their release).75 The ECtHR has refused, however, to accept a limitation to the presumption of jurisdiction that applies to the territorial state in case of disputed areas (no man’s land). Since it had not been established that the territory was under effective control of another state, such an acceptance would have resulted in a vacuum in human rights protection in the view of the Grand Chamber.76 Whereas there were procedural challenges (the complaint had only been lodged against Azerbaijan, not against Armenia), I tend to agree in principle with Judge Yudkivska’s plea for assessing this case as one of concurrent responsibility (which presumes concurrent jurisdiction).77 A second hypothesis in which concurrent jurisdiction has been mentioned (though not addressed) is that in which several states contribute forces to a multinational force, and thereby accept operational control of a commander of another state. The ECtHR has argued that a state does not ‘divest’ itself of its jurisdiction as long as ‘the formulation of essential policy—including . . . the drawing up of distinct rules on the use of force—remain(s) the reserved domain of individual sending States’.78 This means that questions of concurrent jurisdiction arise. The Court did not pronounce itself on that question, though, because the complaint had only been lodged against the Netherlands, not against the United Kingdom.79 In sum, the ECtHR’s approach so far towards concurrent jurisdiction has not excluded it, but neither has it been a driver of change by taking the lead in developing standards for concurrent jurisdiction.

IV. Beyond Jurisdiction? The notion of jurisdiction per se has not gone uncontested in human rights law. There are at least two areas of contestation, which I will briefly flag in this section. In the first place, since jurisdiction is not mentioned in the ICESCR, it may be completely avoided or ignored in the analysis of extraterritorial obligations of economic, social, and cultural rights. In the second place, jurisdiction is not an appropriate concept to attribute human rights obligations to non-state actors.

IV.1. Economic, Social, and Cultural Rights In the preparatory stages of what has been hailed as ‘a major international initiative by experts and activists: the 2011 “Maastricht Principles on the Extraterritorial Obligations 75 Ibid., para. 339; Sargsyan v Azerbaijan (n. 72), para. 131. 76 Sargsyan v Azerbaijan (n. 72), paras. 148–9. 77 Ibid. (Judge Yudkivska, conc. op.). 78 Jaloud v The Netherlands (n. 33), paras. 143, 147. 79 Ibid., para. 153.

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The ‘J’ Word: Driver or Spoiler of Change 427 of States in the area of Economic, Social and Cultural Rights” ’ (Maastricht Principles),80 the J-word was for a considerable period of time the elephant in the room. As illustrated in the previous sections, jurisdiction has been at the core of the discussion on extraterritorial obligations in the area of civil and political rights. As it has often been more a spoiler than a driver of change in efforts to extend states’ human rights obligations beyond their territory, there was quite some hesitation and even strong opposition from some (including myself) to include any reference to jurisdiction in principles on extraterritorial obligations in the area of economic, social, and cultural rights. Others argued persistently and convincingly that jurisdiction was a concept one could not escape from, in particular also when engaging with states on questions of extraterritorial obligations, and pleaded for its inclusion, albeit while imbuing it with new meaning. The latter position was eventually adopted: jurisdiction has been included in the Maastricht Principles, but it has been given a very broad meaning, including situations over which a state exercises authority or effective control, situations over which state actions or omissions bring about foreseeable effects, and situations in which a state is in a position to exercise decisive influence or to take measures to realize economic, social, and cultural rights extraterritorially (Principle 9).81 In an attempt to make jurisdiction a driver of change, the Maastricht Principles stretch the meaning of jurisdiction so far that they in fact redefine and revolutionize its meaning. In particular, the inclusion of situations where a state is simply in a position to take measures to further economic, social, and cultural rights as bringing about obligations for that state is innovative. The inclusion of the latter ground for jurisdiction had become inevitable because of the recognition of obligations of a global character.82 Once obligations of a global character to realize human rights universally are accepted, regardless of any notion of causation or effect through acts or omissions, the only way the concept of jurisdiction can still be used to assign obligations is by giving it a very broad meaning.83 Whereas the re-definition of jurisdiction in the Maastricht Principles may be considered a successful conceptual driver of change, critical questions can and have been asked on this ‘transposition of the standard from the law on civil and political rights’.84 For one, as also exemplified in this chapter, extraterritorial application remains contested, also in the area of civil and political rights, and the precise meaning of jurisdiction is even more up for debate. Second, ‘the area of applicability that the standard is being transposed to-economic rights in situations where control and authority is exercised “on the ground” extraterritorially-addresses activities by states which are, as mentioned, although significant when they happen, unusual when situated within the broader projection of power by states extraterritorially and the effects of this on 80 Anonymous, ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’, Netherlands Quarterly of Human Rights 29(4) (2011): 578–90. 81 De Schutter et al. (n. 9), 1104–9. 82 This is explicitly acknowledged ibid., 1109. 83 See also Wouter Vandenhole, ‘Beyond Territoriality: The Maastricht Principles on Extra-Territorial Obligations in the Area of Economic, Social and Cultural Rights’, Netherlands Quarterly of Human Rights 29 (2011): 429; Vandenhole (n. 63), 120. 84 Wilde (n. 3), 161.

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428 Wouter Vandenhole the economic position of people worldwide’.85 In other words, the real-life effects of the conceptual innovation and its contribution to global economic justice are questioned. Whereas there is certainly some truth in this criticism, it seems that the conceptual innovation is somewhat underestimated or undervalued, since in particular part of the third jurisdiction test of Maastricht Principle 9, namely to be in a position to take measures, seems to be omitted from Wilde’s analysis,86 which undercuts his criticism to some extent. Having said this, criticism has also been voiced on using actual capacity to assign jurisdiction, in particular with regard to the extraterritorial obligation to fulfil economic, social, and cultural rights. Vandenbogaerde has argued, not without force, that Maastricht Principle 9 ‘reflects principles of attribution of responsibility rather than obligations’.87 He suggests instead to use the legal competences of states as attributional base.88 In any case, it is clear that the Maastricht Principles (eventually) have not sought to move beyond the concept of jurisdiction to attribute extraterritorial obligations. Such an effort has been undertaken much more in the discussion on the human rights obligations of non-state actors, to which I now turn.

IV.2. Non-State Actors Possibly with the exception of a regional organization with a clear territorial delineation such as the European Union,89 jurisdiction is not a workable concept to assign human rights obligations to non-state actors such as international organizations or corporations, given its intricate connection with territory. Hence, a ‘functional equivalent to a State’s jurisdiction’90 has been looked for. For example, in the business and human rights debates, sphere of activity, sphere of influence, impact, and leverage have been used and/or proposed. Within a broad spectrum of approaches, there is at one end an abstract test, independent of the particular act or omission in question, like the sphere of influence or proximity tests with regard to companies. At the other end is a contextual and inductive approach that leans towards fact-based tests, whereby the focus is on the actual or potential use of power or activity, and its effects or impact on rights-holders. Elsewhere, I have suggested that a fruitful way forward may be not to identify the most suitable notion, but rather the type of test (or combination of tests) that is most amenable to operationalization.91 I expressed a preference for an abstract test (degree of control; 85 Ibid. 86 Ibid., 158. 87 Arne Vandenbogaerde, ‘Jurisdiction Revisited: Attributing Extraterritorial State Obligations under the International Covenant on Economic, Social and Cultural Rights’, Human Rights & International Legal Discourse 9(1) (2015): 6–33, 27. 88 Ibid., 24–5. 89 Vandenhole (n. 63), 120. 90 John Ruggie, ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Clarifying the Concepts of ‘Sphere of Influence’ and ‘Complicity’‘, (2008) at 5. 91 For more details, see Vandenhole (n. 63), 120–1.

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The ‘J’ Word: Driver or Spoiler of Change 429 influence; leverage), since the assignment of obligations typically takes place ‘in a more abstract way, prior to and outside the realm of alleged violations’.92 Vandenbogaerde has rejected any test on the basis of influence or capacity, and proposes instead the attribution of obligations based on the activities of a company.93 But clearly, there is as yet no consensus on the functional equivalent to jurisdiction for non-state actors, and much more work is needed.

V. By Way of Conclusion: Is Jurisdiction Just Another Word? The reality is now such that states engage frequently in extraterritorial conduct, or take measures with extraterritorial effects, which impact (negatively) on human rights outside their borders. It was submitted in this chapter that human rights law must be able to speak to this reality, which means that it must be able to engage with extraterritorial conduct or effects. The notion of ‘jurisdiction’ has been at the heart of debates on extraterritorial human rights obligations. In human rights law, jurisdiction is not about the legality to act, but rather about the question whether an obligation to observe human rights applies towards certain individuals. Hence, it defines the scope of application of a treaty ratione personae: towards which rights-holders does a State Party hold obligations? Different models of extraterritorial jurisdiction have emerged: the spatial, personal, checkpoint, and cause-and-effect model of jurisdiction. The ECtHR has drifted somewhat between a spatial, personal, and checkpoint model, each of which tends to inhibit rather than to further extraterritorial jurisdiction beyond the exceptional. Overall, jurisdiction has been rather a spoiler of change than a game changer in the case law of the ECtHR. The cause-and-effect approach to extraterritorial jurisdiction mainly finds support in the case law of other human rights enforcement bodies, in particular the HRC and the IACmHR. Such a cause-and-effect94 or ‘functional’95 interpretation of jurisdiction can be a stronger driver of change towards broad extraterritorial jurisdiction. There are two challenges for extraterritorial jurisdiction. First, there is a challenge of clarifying the scope of extraterritorial jurisdiction. It has been argued in this chapter that an expansive and open reading of the concept of extraterritorial jurisdiction must be matched by a variable scope of relevant rights and obligations incumbent on the foreign state, commensurate to the degree of control that is exercised. Second, a better understanding of concurrent jurisdiction is needed: if one accepts a cause-and-effect 92 For more details, see ibid., 121. 93 Arne Vandenbogaerde, Towards Shared Accountability in International Human Rights Law: Law, Procedures and Principles, Law and Cosmopolitan Values, 7 (Cambridge: Intersentia, 2016), 349, 262–71. 94 Scheinin (n. 50) has defended a ‘facticity creates normativity’ approach. 95 Gammeltoft-Hansen (n. 51), 77–81.

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430 Wouter Vandenhole interpretation of extraterritorial jurisdiction, more than one state will typically exercise jurisdiction (concurrent jurisdiction). How this plays out in practice, and what the implications are for responsibility for violations, requires further elaboration. There are also three challenges to jurisdiction itself as a useful or relevant concept. First, since jurisdiction is not mentioned in the ICESCR, it may be completely avoided or ignored in the analysis of extraterritorial obligations of economic, social, and cultural rights. Second, jurisdiction is not a workable concept to assign human rights obligations to non-state actors such as international organizations or corporations, given its intricate connection with territory. Hence, a proxy or functional equivalent to jurisdiction is needed. Third, jurisdiction has also been challenged within the ‘traditional’ realm of extraterritorial obligations in the area of civil and political rights. Some have defended a ‘relational or contextual’ approach to jurisdiction, which blurs the lines, also analytically, not only between jurisdiction and other admissibility criteria, but also between jurisdiction and substantive questions, including whether there was a violation.96 If ‘jurisdiction’ is a word rather than a concept, it can be used to describe or even consolidate aspects of either the state responsibility regime or the admissibility assessment under human rights treaties; however, ‘jurisdiction is not an additional admissibility requirement or an additional step in establishing State responsibility’.97 If jurisdiction is not a normative concept, just another word, any potential for driving change in human rights law, towards a broader recognition of extraterritorial application, is denied. Undoubtedly, issues of jurisdiction are linked with questions of admissibility and substance, but I continue to see merit in analytically distinguishing the assignment of obligations and the attribution of responsibility for violations (including the attribution of conduct).98 It is in the former that jurisdiction has a role to play. That role has been more of a spoiler than a driver of change so far, but legally there is no reason why it should be in the future as well.

96 Scheinin (n. 50). 97 Martin Scheinin, ‘Just Another Word? Jurisdiction in the Roadmaps of State Responsiblity and Human Rights’, in Malcolm Langford et al. (eds.), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (New York: Cambridge University Press, 2013), 212–32, 214. 98 See Vandenhole (n. 63), where I approach the questions of assigning obligations and attributing responsibility as analytically distinct, each with their own rules and principles.

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Chapter 18

I n ter nationa l I n v estm en t L aw, H y br id Au thor it y, a n d J u r isdiction Edward Guntrip*

I. Introduction

432

II. Jurisdiction, Authority, and Transnational Law

433

III. International Investment Law

440

IV. Changing Jurisdictional Practices

451

V. Conclusion

453

II.1. Jurisdiction and Authority II.2. Transnational Law

434 439

III.1. The Classic IIL Paradigm 440 III.2. Hybrid Authority—the Host State and the Foreign Investor 443 III.3. Hybrid Authority—the Host State and Investment Arbitration447 III.4. Preliminary Conclusion 451

* The author would like to thank Malgosia Fitzmaurice and Tarik Kochi for their comments on drafts versions of this chapter. All errors and omissions remain the responsibility of the author.

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432 Edward Guntrip

I. Introduction Jurisdiction is the mechanism through which exercises of authority are legitimized as law.1 Law becomes embodied through representations of legal authority, such as written laws, courts, and symbolic acts.2 Jurisdictional practices tie the law to people, territory and events.3 The forms of authority that are recognized as law, and implemented through jurisdictional practices, will depend on what factors are prioritized by the jurisdictional framework,4 which are determined by ideologies that underpin the notion of law. Jurisdiction in international law currently adopts a state-centric frame of reference to regulate exercises of authority.5 Consequently, jurisdiction reconciles competing claims of state authority6 with reference to the binary frameworks of public international law and private international law.7 This jurisdictional framework presupposes that: first, the state is the central actor in international law; second, that public and private realms are distinct; and third, that non-state actors only operate in the domestic legal sphere.8 Therefore, the construct of the state is pivotal in determining what amounts to law, which parties are bound by the law, and in what circumstances the law is to be applied. In contrast to the jurisdictional framework, international investment law (IIL) can be characterized as a hybrid regime.9 For example, in its classic form, IIL applies both domestic and international law, entails legal relations between states and non-state actors, and regularly relies on international dispute settlement mechanisms that employ private arbitrators. IIL’s hybrid structure reflects the neoliberal economic policies that underpin the operation of the regime. Neoliberalism promotes the market as the most efficient means of allocating resources, and accordingly, seeks to restrict the role of the

1 Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Abingdon: Routledge, 2012), 4–5. 2 Ibid., 12–14, 49–50. 3 Ibid., 55–7. 4 Ibid., 35–6 (demonstrating the shift from the Church to the State as the source of sovereignty). 5 Cedric Ryngaert, ‘Non-State Actors: Carving out a Space in a State-Centred International Legal System’, Netherlands International Law Review 63(2) (2016): 183–95, 185. 6 Alexander Orakhelashvili, ‘State Jurisdiction in International Law: Complexities of a Basic Concept’, in Alexander Orakhelashvili (ed.), Research Handbook on Jurisdiction and Immunities in International Law (Cheltenham: Edward Elgar, 2015), 1–49, 1; Cedric Ryngaert, Jurisdiction in International Law, 2nd Edition (Oxford: Oxford University Press, 2015), 6; Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84(1) (2014): 187–239, 187. 7 Alex Mills, The Confluence of Public and Private International Law; Justice, Pluralism and Subsidiarity in the International Constitutional Ordering of Private Law (Cambridge: Cambridge University Press, 2009), 1–2. 8 Ibid. 9 See e.g. Zachary Douglas, ‘The Hybrid Foundations of Investment Treaty Arbitration’, British Yearbook of International Law 74(1) (2004): 151–289. Hybridity is also recognized as a theme in Steffen Hindelang and Markus Krajewski, ‘Introductory Comments’, in Steffen Hindelang and Markus Krajewski (eds.), Shifting Paradigms in International Investment Law: More Balanced, Less Isolated, Increasingly Diversified (Oxford: Oxford University Press, 2016), 6.

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International Investment Law 433 state to facilitate the operation of the market.10 As a result, the state’s ability to assert its sovereignty is minimized in favour of authority being exercised by the private sector.11 Thus, it is posited that state authority in IIL does not always possess the primacy that jurisdiction in international law automatically ascribes to it. In fact, state authority in IIL is often constituted (and delimited) by exercises of authority by non-state actors. This type of interaction between state and non-state actors is understood for the purposes of this chapter as hybrid authority. This chapter examines jurisdictional practices relating to hybrid authority in IIL to understand how authority is exercised in IIL. It explains exercises of hybrid authority in IIL and analyses them with reference to both the state-centred ideologies that underpin jurisdiction in international law and the neoliberal foundations of IIL. Based on how hybrid authority functions in IIL, the chapter highlights that the role of the state in international law has shifted from that of a welfare state to a competition state. Yet, the jurisdictional framework has not adapted to the altered function of the state. Hence, despite the common use of hybrid authority in IIL, it cannot be accommodated within the jurisdictional framework in international law. To explain these ideas in full, Section II of this chapter examines how jurisdiction and authority interrelate, and how transnational law recognizes plural sources of authority, such as hybrid authority, that challenge the current state-centric jurisdictional framework. Section III explains jurisdictional practices in IIL to understand how authority is expressed within the regime. This section focuses on two examples of hybrid authority. The first example considers the relationship between the state and the foreign investor, whilst the second explores the relationship between the state and investment arbitration. Section IV discusses how jurisdictional practices are evolving and reflects on whether jurisdiction in international law will be able to encompass exercises of hybrid authority in IIL. Conclusions are drawn in Part V.

II. Jurisdiction, Authority, and Transnational Law To situate exercises of hybrid authority within international law, it is necessary to understand how jurisdiction and authority interrelate, together with how transnational law seeks to capture exercises of authority that do not conform with the jurisdictional framework.

10 Enrique Prieto-Rios, ‘Neoliberal Market Rationality: The Driver of International Investment Law’, Birkbeck Law Review 3(1) (2015): 55–76, 65. 11 John Quiggin, ‘Globalization and Economic Sovereignty’, The Journal of Political Philosophy 9(1) (2001): 56–80, 56, 57.

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II.1. Jurisdiction and Authority Jurisdiction in international law focuses on exercises of state authority.12 State authority in the international arena is usually delimited by reference to a state’s territory.13 Therefore, when states seek to assert their authority extraterritorially, their claim is likely to be contested.14 Jurisdiction in international law performs the dual function of recognizing a state’s authority within its territory and determining the parameters of its extraterritorial application.15 How jurisdiction achieves this aim differs between public international law and private international law. In public international law, jurisdiction regulates simultaneous assertions of state authority by reconciling claims16 based on notions associated with statehood17 such as territory,18 nationality19 and sovereignty.20 Thus, jurisdiction in public international law seeks to accommodate the ability of states to assert concurrent authority on the international plane.21 In contrast, jurisdiction in private international law uses domestic legal principles to identify which state law should bind non-state actors when their conduct extends across territorial b oundaries.22 Which state possesses jurisdiction is determined by applying connecting factors to identify the degree of closeness between the conduct of the non-state actor and the state in question.23 Hence, jurisdiction in private international law allocates states’ regulatory authority amongst non-state actors at the domestic level.24 Therefore, jurisdiction in international law operates by creating divisions between states and non-state actors,

12 Orakhelashvili (n. 6), 1; Ryngaert (n. 6), 6; Mills (n. 6), 187. 13 Mills (n. 6), 196–7. 14 Ryngaert (n. 6), 5. 15 See Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994), 146: ‘the law of jurisdiction is about entitlements to act’ (emphasis in original). F. A. Mann, ‘The Doctrine of Jurisdiction in International Law’, Recueil des Cours 111 (1964): 1–162, 9, 15; Gregor Noll, ‘Theorizing Jurisdiction’, in Anne Orford and Florian Hoffmann (eds.), The Oxford Handbook on the Theory of International Law (Oxford: Oxford University Press, 2016), 600; Ryngaert (n. 6), 6; Mills (n. 6), 194. 16 This may involve the balancing of competing interests. See Derek W. Bowett, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’, British Yearbook of International Law 53 (1983): 1–26, 18; Orakhelashvili (n. 6), 15. For further discussion as to the complexity that arises from the use of justice in this context, see Mills (n. 7), ch. 1; Noll (n. 15), 600. 17 Orakhelashvili (n. 6), 23. 18 Bowett (n. 16), 4; Mills (n. 6), 196. 19 Bowett (n. 16), 7; Mills (n. 6), 196. 20 Mann (n. 15), 9; Bowett (n. 16), 1. As to whether this is a viable interpretation, see Orakhelashvili (n. 6), 7–13. 21 A. Claire Cutler, ‘Artifice, Ideology and Paradox: The Public/Private Distinction in International Law’, Review of International Political Economy 4(2) (1997): 261–85, 264. 22 Mills (n. 7), 10; Horatia Muir Watt, ‘Theorizing Private International Law’, in Anne Orford and Florian Hoffmann (eds.), The Oxford Handbook on the Theory of International Law (Oxford: Oxford University Press, 2016), 862–3; Cutler (n. 21), 264. 23 James Fawcett and Janeen M. Carruthers, Cheshire, North & Fawcett Private International Law, 14th edn (Oxford: Oxford University Press, 2008), 42. 24 Alex Mills, ‘Variable Geometry, Peer Governance, and the Public International Perspective on Private International Law’, in Horatia Muir Watt and Diego P. Fernández Arroyo (eds.), Private International Law and Global Governance (Oxford: Oxford University Press, 2014), 245–61, 246.

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International Investment Law 435 delimiting the scope of their respective interests, and subjugating private forms of jurisdiction to the domestic sphere.25 The dichotomies present within the jurisdictional framework result from a Westphalian understanding of international law.26 This construction of international law emphasizes that states are the primary actors in international law27 and, as such, are accorded international legal personality.28 International legal personality confers states with autonomy to exercise their authority.29 In contrast, given their lack of international legal personality, non-state actors are the subjects of law and are confined to the domestic sphere. The distinction drawn between states and non-state actors is exacerbated when combined with eighteenth-century views on economic liberalism that continue to influence contemporary international law.30 In accordance with economic liberalism, states are classified as performing a public law role based on their democratic foundations.31 Conversely, legal relations between non-state actors are understood to operate based on market values32 and are distinguished from public law given their apolitical and neutral characteristics.33 Consequently, the dominant understanding of i nternational law, which forms the foundation of jurisdiction, dictates that states perform public functions in the international and domestic realms, whilst non-state actors function in the private realm, subject to domestic laws. The philosophies that underpin the contemporary jurisdictional framework are significant because they inform what exercises of authority are legitimized and thus become law. Accordingly, the relationship between authority and law creation is informed by international law’s state-centric nature. However, this relationship is complicated by the disconnect that exists between how authority in international law is understood to function, and how it is actually exercised. Theoretical discussions of authority have traditionally relied on domestic legal frameworks that examine interactions between the state and the individual.34 On this basis, authority can be understood as the legitimate exercise of power, the effect of which is to constrain the free

25 Horatia Muir Watt, ‘The Relevance of Private International Law to the Global Governance Debate’, in Horatia Muir Watt and Diego P. Fernández Arroyo (eds.), Private International Law and Global Governance (Oxford: Oxford University Press, 2014), 1–18, 2. 26 The role of the Treaty of Westphalia in establishing this structure is questionable. See Stéphane Beaulac, ‘The Westphalian Model in Defining International Law: Challenging the Myth’, Australian Journal of Legal History 8(2) (2004): 181–213; A. Claire Cutler, ‘Critical Reflections on the Westphalian Assumptions of International Law and Organization: A Crisis of Legitimacy’, Review of International Studies 27(2) (2001): 133–50, 135. 27 Cutler (n. 26), 135. 28 See Hersch Lauterpacht, ‘The Subjects of the Law of Nations’, Law Quarterly Review 63 (1947): 438–60, 439; Cutler (n. 26), 139–40. 29 Stephen D. Krasner, ‘Compromising Westphalia’, International Security 20 (1995–6): 115–51, 115. 30 Cutler (n. 21), 265, 272. 31 Cutler (n. 21), 273, 276–7. 32 Ibid., 272; A. Claire Cutler, Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (Cambridge: Cambridge University Press, 2010), 152, 160. 33 Cutler (n. 32), 243. 34 Basak Çali, The Authority of International Law (Oxford: Oxford University Press, 2015), ch. 1.

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436 Edward Guntrip judgment of a subject.35 Hence, although there are multiple schools of thought, understandings of authority seek to legitimize exercises of power36 by reference to both the source of power and the reasons why subjects comply with the exercise of power.37 When addressing the source of power, authority is distinguished from other exercises of power by reference to criteria such as: the need for authority to arise independently of the norm being enforced;38 that authority can only be exercised in a particular domain;39 and that authority must rely on more than coercion40 to be legitimate.41 Justifications as to why a subject accepts authority rely on the social relationship between the source of authority and the subjects.42 The requisite social interactions arise when a subject expressly or impliedly consents to the authority43 or, alternatively, when the exercise of authority is necessary to achieve a greater good.44 If authority exists based on these frameworks, it is understood as being absolute.45 Using these reference points, state authority is often legitimized by reference to the public processes associated with democratic ideals because they align with the need to identify both a source of power (the elected government) and the reason for its acceptance (the democratic mandate).46 Jurisdiction in international law broadly mirrors these characteristics as it emphasizes the role of the state as the sole source of authority and deems state authority to be binding by virtue of its general acceptance. Nevertheless, rationalizations of authority based on domestic law become problematic in the context of international law because international law does not possess the same power-dynamics as domestic legal systems. The altered power relationships can, in part, be explained by the structural differences in the legal systems. Domestic legal systems allocate authority through constitutional structures, whereas international law

35 Dimitrios Katsikas, ‘Non-State Authority and Global Governance’, Review of International Studies 36 (2010): 113–35, 116; Samantha Besson, ‘The Authority of International Law: Lifting the State Veil’, Sydney Law Review 31 (2009): 343–80, 346–6; see also Allen Buchanan, ‘The Legitimacy of International Law’, Samantha Besson and John Tasioulas (eds.), The Philosophy of International Law (Oxford: Oxford University Press, 2010), 79–85. 36 Nicole Roughan, Authorities: Conflicts, Cooperation and Transnational Legal Theory (Oxford: Oxford University Press, 2013), 20. 37 Nicole Roughan, ‘Mind the Gaps: Authority and Legality in International Law’, European Journal of International Law 27(2) (2016): 329–51, 332. 38 Roughan (n. 36), 20; e.g. see Besson’s adoption of Raz in Besson (n. 35), 351. 39 Roughan (n. 36), 26–7; Rodney Bruce Hall and Thomas J. Biersteker, ‘The Emergence of Private Authority in the International System’, in Rodney Bruce Hall and Thomas J. Biersteker (eds.), The Emergence of Private Authority in Global Governance (Cambridge: Cambridge University Press, 2002), 4. 40 Roughan (n. 36), 24; Katsikas (n. 35); Roughan (n. 37), 332. 41 Roughan (n. 36), 30; Bruce Hall and Biersteker (n. 39), 4. 42 Bruce Hall and Biersteker (n. 39), 5. 43 Roughan (n. 36), 21, 31–6. 44 Roughan (n. 36), 22, 36–42. 45 Çali (n. 34), 28. 46 Matthias Goldmann, ‘A Matter of Perspective: Global Governance and the Distinction between Public and Private Authority (and Not Law)’, Global Constitutionalism 5(1) (2016): 48–84, 57; Besson (n. 35), 349–50; Çali (n. 34), 50; Paul Schiff Berman, ‘The Evolution of Global Legal Pluralism’, in Roger Cotterell and Maksymilian Del Mar (eds.), Authority in Transnational Legal Theory (Cheltenham: Edward Elgar Publishing Ltd, 2016), 156.

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International Investment Law 437 is non-hierarchical.47 Therefore, international law has no discernible source of legal authority.48 A second factor that influences how authority functions in international law is that states create, and are simultaneously bound by, international law. The dual function of states blurs the relationship between the source of the authority and the subject. This leads to the situation where, depending on the domain of authority, not all states in international law will be subjects at any given time.49 Thus, international law’s diffuse nature creates a variable number of potential law-makers and a changeable group of potential subjects.50 Finally, in domestic law, states are only ever authorities and individuals are only ever subjects. Conversely, international law claims to bind parties that are authorities in their own right.51 Based on the non-hierarchical nature of international law, its selective application, and that states act as both authorities and subjects in different contexts, the application of international law does not permit states to exercise absolute authority.52 Hence, the exercise of state authority in international law can only ever be relative.53 As understandings of authority are primarily based on domestic law, and international and domestic law have different structures and functions, the jurisdictional framework only partially reflects how state authority is exercised in international law. As such, jurisdiction has the potential to deny legitimacy to exercises of authority that do not conform to domestic models of authority. Jurisdiction in international law additionally assumes that authority can only emanate from the state.54 Exclusively recognizing state authority minimizes the existence of overlapping, and potentially inconsistent, legal authorities.55 However, the presumption that only states possess international legal personality has come under increasing scrutiny due to processes associated with globalization.56 Private parties have now been ostensibly conferred with legitimate authority in the international realm.57 Nonetheless, it is questionable whether private parties can exercise legitimate authority in accordance with traditional understandings of authority. For private parties to generate legitimacy there must be some external reason as to why subjects comply with their exercise of

47 Besson (n. 35), 358; Çali (n. 34), 40. 48 As to the role of consent in providing authority see Çali (n. 34), 24–8. 49 Besson (n. 35), 360. 50 Ibid., 358. 51 Roughan (n. 37), 338. 52 Çali (n. 34), 74; Roughan (n. 37), 336. 53 Çali (n. 34), 74; Berman (n. 46), 154; Roughan (n. 37), 340. 54 See Eva Hartmann and Poul F. Kjaer, ‘The Status of Authority in the Globalizing Economy: Beyond the Public/Private Distinction’, Indiana Journal of Global Legal Studies 25 (2018): 3–36, 3. 55 Horatia Muir Watt, ‘Theorizing Transnational Authority: A Private International Law Perspective,’ in Roger Cotterell and Maksymilian Del Mar (eds.), Authority in Transnational Legal Theory (Cheltenham: Edward Elgar Publishing Ltd, 2016), 340. 56 Although the processes giving rise to globalization are not necessarily new, when recent processes are examined in isolation, the scale of the impacts of globalization can be magnified. See Julie Dickson, ‘Who’s Afraid of Transnational Legal Theory? Dangers and Desiderata’, Transnational Legal Theory 6 (2015): 565–85, 569–70. 57 Bruce Hall and Biersteker (n. 39), 4.

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438 Edward Guntrip authority.58 In the domestic context, democratic structures justify the creation of legitimate authority in the public realm.59 However, in most instances of private authority, accountability is to members of the private group,60 and membership is based on self-interest, rather than a public good.61 As private manifestations of power are deemed to operate outside of the public realm,62 authority exercised by private groups is considered to lack legitimacy.63 Therefore, under the current state-centric formulation of jurisdiction in international law, authority that emanates from non-state actors cannot be legitimized in international law. In short, jurisdiction in international law focuses on the role of the state in the domestic context and overlooks the role of non-state actors as a result of the assumptions that underpin the jurisdictional framework. These assumptions include that states possess absolute authority and that exercises of authority by non-state actors cannot be legitimized in international law. The continued emphasis that is placed on the state as the ultimate source of authority fails to recognize authority beyond the state. However, the jurisdictional framework does not (and cannot) extinguish alternative sources of authority. The existence of multiple sources of authority, sourced from both states and non-state actors, creates overlapping, parallel spheres of authority that compete with, and have the potential to limit, an individual state’s authority. Exercises of authority by private parties, albeit without legitimacy,64 create new interactions that only serve to highlight the relative nature of state authority in the international sphere. The difference between state authority and non-state authority is that, under a state-centric framework, alternative non-state exercises of authority go unnoticed and remain unregulated.65 58 Ian Hurd, ‘Legitimacy and Authority in International Politics’, International Organization 53(2) (1999): 379–408, 381. See, more generally, C. A. Thomas, ‘The Concept of Legitimacy and International Law’, LSE Law, Society and Economy Working Papers 12/2013, http://eprints.lse.ac.uk/51746/1/__libfile_ repository_Content_Law%2C%20society%20and%20economics%20working%20papers_2013_ WPS2013-12_Thomas.pdf. 59 Jean d’Aspremont and Eric de Brabandere, ‘The Complementary Faces of Legitimacy in International Law: The Legitimacy of Origin and the Legitimacy of Exercise’, Fordham International Law Journal 34(2) (2011): 190–235, 198; Renate Mayntz, ‘Legitimacy and Compliance in Transnational Governance’, Max Plank Institute for the Study of Societies Working Paper 10/5, http://www.mpifg.de/ pu/workpap/wp10-5.pdf, 8; Roger Cotterrell, ‘What Is Transnational Law?’, Law & Social Inquiry 3(2) (2012): 500–24, 515–16; Horatia Muir Watt, ‘Private International Law’s Shadow Contribution to the Question of Informal Transnational Authority’, Indiana Journal of Global Legal Studies 25 (2018): 37–60, 56. 60 A. Claire Cutler, ‘Private Regimes and Interfirm Cooperation’, in Rodney Bruce Hall and Thomas J. Biersteker (eds.), The Emergence of Private Authority in Global Governance (Cambridge: Cambridge University Press, 2002), 32. 61 Goldmann (n. 46), 77; Muir Watt (n. 59), 52; Cotterrell (n. 59), 515. 62 Cutler (n. 60), 32. See Roger Cotterrell, ‘Transnational Communities and the Concept of Law’, Ratio Juris 21(1) (2008): 1–18, 4–6. 63 Mayntz (n. 59), 10; see also Andreas Maurer, ‘The Creation of Transnational Law: Participatory Legitimacy of Privately Created Norms’, Zentra Working Papers in Transnational Studies 03/2012, https:// ideas.repec.org/p/zen/wpaper/03.html. 64 Muir Watt (n. 59),52. 65 See Horatia Muir Watt, ‘Private International Law Beyond the Schism’, Transnational Legal Theory 2(3) (2011): 347–427, 356.

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International Investment Law 439

II.2. Transnational Law Transnational law challenges the state-centric conceptualization of jurisdiction by deconstructing state-centred understandings of law to reflect diverse forms of authority. Jessup’s seminal pronouncement that transnational law encompasses ‘all law which regulates actions or events that transcend national frontiers’66 identifies public international law, private international law, and what Jessup referred to as ‘other rules which do not wholly fit into such standard categories’67 as being the constituent elements of transnational law.68 Whilst the essence of transnational law is easy to capture in this manner,69 varied, and often competing, understandings of transnational law have been subsequently formulated, making it difficult to conceptualize transnational law in a coherent manner.70 Nonetheless, one stream of transnational law can be understood as a form of private legal ordering.71 Adopting this approach, Cutler considers the transnational as ‘a space where public and private actors and national and international legality are melded into hybrid forms of laws and dispute settlement mechanisms’.72 Cutler’s understanding of transnational law captures exercises of hybrid authority that jointly emanate from states and non-state actors in IIL. IIL is based on a network of treaties between states that are intended to encourage private actors to invest in a state. Contractual relations between the private actor and the state govern individual investments. IIL also confers private actors with the ability to commence claims against a state should their conduct violate investment protection standards set out in the treaty, which are heard by private arbitrators. The structure of IIL necessitates that states and foreign investors interact at both the international and domestic levels, often generating hybrid relationships between the foreign investor and the host state. Each of these interactions involves the foreign investor and the state exercising authority, and in certain circumstances, may require third parties (e.g. arbitrators) to exercise authority as well. 66 Philip C. Jessup, Transnational Law (New Haven: Yale University Press, 1956), 2. 67 Ibid., 2. 68 For further discussion of Jessup’s approach, see Christian Tietje, Alan Brouder, and Karsten Nowrot, ‘Philip C. Jessup’s Transnational Law Revisited: On the Occasion of the 50th Anniversary of its Publication’, http://www.wirtschaftsrecht.uni-halle.de/sites/default/files/altbestand/Heft50.pdf. 69 Jessup’s definition of transnational law leaves several key questions unanswered, see Math Noortman ‘Transnational Law: Philip Jessup’s Legacy and Beyond’, Math Noortmann, August Reinisch, and Cedric Ryngaert (eds.), Non-State Actors in International Law (Oxford: Hart Publishing, 2015), 57–74; Math Noortman, ‘Understanding Non-State Actors in the Contemporary World Society: Transcending the International, Mainstreaming the Transnational, or Bringing the Participants Back In?’, in Math Noortmann and Cedric Ryngaert (eds.), Non-State Actor Dynamics in International Law: From Law-Takers to Law-Makers (Farnham: Ashgate Publishing, 2010), 153–70. 70 Cotterrell (n. 59), 501. See Gregory Shaffer, ‘Theorizing Transnational Legal Ordering’, Annual Review of Law and Social Science 12 (2016): 231–53. Transnational Law has also been classified by Craig Scott, ‘ “Transnational Law” as Proto-Concept: Three Conceptions’, German Law Journal 10 (2009): 859–76. 71 Shaffer (n. 70), 233. 72 A. Claire Cutler, ‘The Judicialization of Private Transnational Power and Authority’, Indiana Journal of Global Legal Studies 25 (2018): 61–96, 69.

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440 Edward Guntrip Therefore, IIL embodies the relative nature of state authority on the international plane and the increasing significance of authority that emanates from non-state actors. In sum, hybrid authority in IIL can be understood to be a form of transnational law.73 As transnational law challenges the state-centric jurisdictional framework, it is necessary to examine jurisdictional practices that address hybrid authority in IIL to understand how these challenges are met.

III. International Investment Law Jurisdictional practices illustrate how authority is exercised and how law is identified. By reviewing exercises of authority in IIL from a jurisdictional perspective, it is possible to understand how the ideologies underpinning the notion of international law, and the manner in which IIL functions, influence which forms of authority are recognized as legitimate. The analysis further illustrates the effects of unrecognized forms of authority on the state. The conclusions drawn highlight the extent to which hybrid authority in IIL is accommodated by jurisdiction in international law.

III.1. The Classic IIL Paradigm IIL is the legal regime that governs foreign direct investment (FDI). FDI is when an investor with the nationality of one state (the home state) invests in a medium-to-long-term investment project in a foreign jurisdiction (the host state). The legal obligations relating to each specific investment are usually governed by contractual arrangements sourced from domestic law that bind the host state and the foreign investor. Treaties between home states and host states, known as international investment agreements (IIAs), offer legal protections to foreign investors provided that the investment falls within the scope of the IIA. For an investment to be protected it must meet the conditions set out in the IIA, which require that a foreign investor possesses the home state’s nationality, that the investment complies with the definition of an investment in the IIA, and often that the investment is in the territory of the host state. A wide variety of conduct may amount to an investment, but classic examples include undertaking mining activities, construction projects, and providing what have traditionally been understood to be public services, such as energy or water supplies. The legal protections offered are 73 Roughan (n. 36), 146. See Federico Ortino and Matteo Ortino, ‘Law of the Global Economy: In Need of a New Methodological Approach’, in Colin B. Picker, Isabella D. Bunn, and Douglas W. Arner (eds.), International Economic Law (Portland: Hart Publishing, 2008), 106: ‘the only way to properly appreciate the administrative and commercial disciplines affecting the cross border flows of investment is to follow a more comprehensive approach which includes national and international administrative norms, as well as national and transnational commercial norms . . . to endure a higher level of coordination between the several objectives pursued by these norms’.

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International Investment Law 441 designed to protect the property of the foreign investor, prevent nationality-based discrimination between investors (both foreign and domestic), and ensure fair and equitable treatment. If any disputes arise, the foreign investor has the right to claim directly against the host state for violations of investment protection standards. Disputes are resolved through investment arbitration, based on a foreign investor’s acceptance of a host state’s standing offer to arbitrate. The decision-makers in investment arbitration are privately appointed investment arbitrators. The manner in which IIL functions mirrors the tenets of neoliberal economic policy. Although conceptualized in a variety of ways, in general terms, neoliberalism builds upon the foundations of economic liberalism.74 Whilst economic liberalism sought to rely on the market to regulate activities in the private sphere, neoliberalism supports the use of a market-based ideology to drive social and economic development.75 To give effect to the premise that the market will allocate resources in the most efficient manner,76 neoliberalism encourages the private sector, rather than the state, to deliver services.77 To encourage the private sector, neoliberalism prioritizes the protection of private property rights and seeks to regulate conduct through contractual relations rather than legislation.78 Consequently, according to neoliberal economic policy, the role of the state is to create conditions that permit the market to operate without state intervention.79 Should the state intervene in the market, its conduct is subject to external review, which ensures that the dispute resolution forum remains apolitical.80 The attributes of neoliberalism are mirrored in IIL’s legal structure. Foreign investors enter into contracts with states to protect the property rights associated with their investment project. Contracts are deemed to be preferable to domestic law as they do not directly engage with the public sphere.81 Further, any contractual alterations or breaches emanating from a state are viewed as arbitrary as they undermine the efficient operation of the market.82 Thus, FDI can be allocated in the most efficient manner based on market principles. The treaty structure upholds the primacy of the contractual rights and obligations by providing investment protection standards, which in effect, limit state intervention in the market. State interference with the foreign investor’s property 74 Eric Helleiner, ‘Economic Liberalism and its Critics: The Past as Prologue?’, Review of International Political Economy 10(4) (2003): 685–96, 686. 75 Prieto-Rios (n. 10), 65; Nicolás M. Perrone, ‘The International Investment Regime after the Global Crisis of Neoliberalism: Rupture or Continuity?’, Indiana Journal of Global Legal Studies 23 (2016): 603–27, 605. 76 Prieto-Rios (n. 10), 65. 77 Béatrice Hibou, ‘Neoliberal Bureaucracy as an Expression of Hybrid Rule’, in Shelley Hurt and Ronnie Lipschutz (ed.), Hybrid Rule and State Formation: Public–Private Power in the 21st Century (Abingdon: Routledge, 2016), 60. 78 Prieto-Rios (n. 10), 66; Perrone (n. 75), 605, 619. 79 Prieto-Rios (n. 10), 65. 80 Perrone (n. 75), 605. 81 Ibid., 619–20. Although state contracts do involve the public interest. See Andrea K. Bjorkland et al., ‘Investment Law at the Crossroads of Public and Private International Law’, in August Reinisch, Mary E. Footer, and Christina Binder (eds.), International Law and . . . : Select Proceedings of the European Society of International Law (Oxford: Hart Publishing, 2016), 151–82, 154. 82 Perrone (n. 75), 614.

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442 Edward Guntrip rights can be challenged using investment arbitration, which is considered to be politically neutral as it provides a delocalized forum for dispute settlement.83 Hence, within IIL the state is intended to play a minimal role in regulating FDI. Neoliberalism became fully embedded in IIL during the 1980s and 1990s.84 At this time, the Washington Consensus actively pursued a neoliberal agenda.85 The collapse of the Soviet Union enhanced support for neoliberal economic policies due to capitalist states’ desire to move former communist states to market-based economies.86 Contemporaneously, many host states accepted the adoption of neoliberal economic policy, as FDI provided a source of much needed capital at the time of an ongoing debt crisis and lack of foreign aid.87 As a result of these factors, states entered into a race to attract FDI.88 Although it is argued that neoliberalism is less prominent in the contemporary IIL regime, it continues to have ramifications for host states by virtue of the continued operation of investment arbitration,89 which is designed to limit exercises of state authority. The combined effect of globalization and neoliberalism has generated the thesis that the welfare state is on the decline and is being replaced by the competition state.90 A welfare state can be understood to be a state that protects aspects of its economic life from market forces.91 In contrast, the competition state is characterized by the need for a state to adopt a neoliberal ideology to compete for mobile capital in the global economy.92 As state intervention creates market inefficiencies, states are precluded from minimizing any hardships that result from the operation of the market.93 Thus, the competition-state thesis asserts that regulatory power is removed from states, preventing 83 See Martins Paparinskis, ‘The Limits of Depoliticisation in Contemporary Investor–State Arbitration’, in Sarah Nouwen and James Crawford (eds.), Select Proceedings of the European Society of International Law: International Law 1989–2010 (Oxford: Hart Publishing, 2012), 271–82. 84 Muthucumaraswamy Sornarajah, ‘The Case against a Regime on International Investment Law’, in Leon E. Trakman and Nicola W. Ranieri (eds.), Regionalism in International Investment Law (Oxford: Oxford University Press, 2013), 484–5; Muthucumaraswamy Sornarajah, ‘Mutations of Neo-Liberalism in International Investment Law’, Trade, Law and Development 3 (2011): 203–32, 212; Prieto-Rios (n. 10), 59. 85 Andrew Newcombe and Lluís Paradell, Law and Practice of Investment Treaties: Standards of Treatment (The Netherlands: Kluwer International Law, 2009), 48; Jeswald Salacuse, ‘The Treatification of International Investment Law’, Law and Business Review of the Americas 13 (2007): 155–66, 156; PrietoRios (n. 10), 59. 86 Sornarajah, ‘Mutations’ (n. 84), 212. 87 Edward Guntrip, ‘Systemic Integration and International Investment Law’, in Sarah Nouwen and James Crawford (eds.), Select Proceedings of the European Society of International Law: International Law 1989–2010 (Oxford: Hart Publishing, 2012), 257–70, 260. 88 Sornarajah, ‘The Case against a Regime’ (n. 84), 481; Prieto-Rios (n. 10), 60. 89 Sornarajah, ‘The Case against a Regime’ (n. 84), 485. 90 Philip G. Cerny, ‘The Competition State Today: From Raison d’Ètat to Raison du Monde’, Policy Studies 31(1) (2010): 5–21, 5; Philipp Genschel and Laura Seelkopf, ‘The Competition State: The Modern State in a Global Economy’, in Stephan Leibfried et al. (eds.), The Oxford Handbook on the Transformation of the State (Oxford: Oxford University Press, 2015), 237–52, 237. 91 Philip G. Cerny, Rethinking World Politics: A Theory of Transnational Neopluralism (Oxford: Oxford University Press, 2010), 37. 92 Genschel and Seelkopf (n. 90), 237–8. 93 Daniel Horsfall, ‘From Competition State to Competition States?’, Policy Studies 31(1) (2010): 57–76, 58.

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International Investment Law 443 them from performing welfare functions.94 The competition-state thesis does not provide a comprehensive account of the demise of the welfare state and cannot account for altered practices in all states.95 Further, it is subject to empirical validation.96 Nonetheless, together with the neoliberal philosophy that underpins FDI, it provides a frame of reference that permits jurisdictional practices in IIL to be evaluated. In particular, both neoliberalism and the competition-state thesis provide a background against which it is possible to understand the role of state authority in IIL. Before proceeding to examine jurisdictional practices in IIL with reference to hybrid authority, it must be acknowledged that the classic structure of IIL does not preclude the application of traditional understandings of jurisdiction in international law. In many instances, the jurisdictional framework accurately captures how parties exercise authority in IIL. For example, when host states and home states enter into IIAs, they operate as states on the international plane to create treaties. This is the classic understanding of jurisdiction in public international law that permits states to exercise their authority to create binding international legal obligations. Further, when foreign investors operate within the territory of the host state, the domestic law of the host state binds them.97 This example conforms to the expectation that the domestic law of the state binds private parties when their conduct is within the state’s territory, which aligns with the notion of territorial sovereignty.98 Consequently, jurisdiction accurately captures aspects of how IIL is classically understood to operate. However, some jurisdictional practices within IIL do not fit so neatly within the jurisdictional framework. Hybrid authority, as a form of transnational law, does not conform to this framework. The challenges the hybrid authority presents will be examined with reference to two jurisdictional practices.

III.2. Hybrid Authority—the Host State and the Foreign Investor The jurisdictional framework in international law proceeds from the assumption that non-state actors are regulated by the operation of private domestic laws. In IIL, in many instances, foreign investors perform public services that would have traditionally been provided by the state.99 To enable foreign investors to do this, they are conferred with authority to perform public roles, by the state, using contracts sourced from private law. Thus, this scenario provides an example of hybrid authority. Although this process can occur across a variety of sectors, the provision of water supply and sanitation services 94 Genschel and Seelkopf (n. 90), 237–8. 95 See Horsfall (n. 93). 96 See Genschel and Seelkopf (n. 90), 237–8. 97 Tarcisio Gazzini, ‘States and Foreign Investment: A Law of Treaties Perspective’, in Shaheeza Lalani and Rodrigo Polanco Lazo (eds.), The Role of the State in Investor–State Arbitration (Leiden: Brill, 2015), 25. 98 Ibid., 25. 99 These include the provision of infrastructure (such as roads) public services (e.g. energy provision, water and sanitation services, and waste disposal).

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444 Edward Guntrip for host state populations has proven to be particularly contentious and has given rise to many investment disputes.100 The award in Urbaser v Argentina101 highlights how difficult it is to capture the authority of non-state actors within the jurisdictional framework when they perform functions traditionally associated with the state. By applying the law to this dispute, the investment tribunal generated a jurisdictional practice that evidences how authority is understood in this context. In Urbaser v Argentina, the claimant was a shareholder in a concessionaire that supplied water and sewerage services in Buenos Aires.102 Following Argentina’s financial crisis in 2001, Argentina enacted emergency measures, which exacerbated the concession’s pre-existing financial difficulties.103 The claimant commenced arbitral proceedings against Argentina for violations of the Spain–Argentina bilateral investment treaty and Argentina counterclaimed, based on the concessionaire’s failure to provide the necessary level of investment in the concession, which it claimed led to violations of the human right to water.104 The tribunal’s analysis in relation to Argentina’s counterclaim illustrates the tribunal’s understanding of how hybrid authority fits within the jurisdictional framework. The tribunal initially found that, in certain cases, public international law is capable of binding corporate non-state actors, including foreign investors.105 The tribunal then proceeded to examine whether the foreign investor could be bound by international law relating to the human right to water.106 To analyse the obligations associated with the human right to water, the tribunal referred to a variety of international instruments. These included international human rights law instruments107 and non-binding legal frameworks.108 Based on these instruments, the tribunal found that in addition to human rights giving effect to the right to water, there was also ‘an obligation on all parts, public and private parties, not to engage in activity aimed at destroying such rights’.109 Thus, the tribunal relied on international law and non-legally binding instruments to 100 These include, inter alia, Biwater Gauff (Tanzania) Ltd v United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, 24 July 2008; SAUR International SA v Argentine Republic, ICSID Case No. ARB/04/4, Decision on Jurisdiction and Liability, 6 June 2012; Suez, Sociedad General de Aguas de Barcelona SA and Interagua Servicios Integrales de Agua SA v Argentine Republic, ICSID Case No. ARB/03/17, Decision on Liability, 30 July 2010. 101 Urbaser SA and Consorcio de Aguas Bilbao Biskaia, Bilbao Biskaia Ur Partzuergoa v Argentine Republic, ICSID Case No. ARB/07/26, Award, 8 December 2016. 102 Ibid., para. 34. 103 Ibid. 104 Ibid., paras. 35–7. 105 Ibid., paras. 1194–5. 106 Ibid., paras. 1196–8. 107 The Universal Declaration on Human Rights (UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)) and the International Covenant on Economic, Social and Cultural Rights (UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, 3) at paras. 1196–7. 108 The tribunal relied on the International Labor Office’s Tripartite Declaration of Principles concerning Multilateral Enterprises and Social Policy (4th edn, 2006) to support their position, para. 1198, and referred to UN Special Representative, John Ruggie’s Final Report on ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31, 21 March 2011. 109 Urbaser v Argentine Republic (n. 101), para. 1199.

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International Investment Law 445 create a binding obligation on non-state actors. By holding that non-state actors were bound by an international obligation, the tribunal merged the distinctions present in the jurisdictional framework that recognize that states are subjects of international law and limit non-state actors to solely being bound by private domestic law. Notwithstanding, the tribunal went on to hold that the binding obligation it had identified did not apply to the foreign investor in this instance. The tribunal distinguished between the obligation it had sourced from international law and the private obligations that the foreign investor was bound by in its contract with the state.110 As the international obligations were not transferred to the foreign investor through private, contractual terms, the foreign investor was not bound by the international obligations.111 As a result, the outcome of the tribunal’s award means that, for non-state actors to be bound by legal obligations, the obligations must be translated into private domestic law, even when the international obligation is found to directly bind non-state actors. In reaching this conclusion, the tribunal reverted to the standard jurisdictional framework that differentiates between public and private, international law and domestic law, and states and non-state actors. The Urbaser v Argentina award evidences that hybrid authority challenges the binary characterization of international law present in the jurisdictional framework. The challenges presented by hybrid authority can be attributed to the breakdown in the roles classically performed by different actors in international law. States have traditionally been understood to be a public actor in international law. As a result, when states devolve their public duties to foreign investors, using contractual relations, they become bound by private legal structures, altering their public status. Simultaneously, foreign investors are required to operate beyond the private sphere. However, foreign investors cannot claim to be public actors, as they do not possess the democratic legitimacy of states and are not internally structured to perform welfare functions. Hence, hybrid authority presents a dilemma because the altered function of each actor does not align with the type of legal obligation designated to each actor as part of the jurisdictional framework. The reasoning in the Urbaser v Argentina award demonstrates that the tribunal sought to reconcile the blurred boundaries between the public and private spheres by reference to both the function undertaken by the foreign investor and the legal framework that binds private actors. When generating a binding legal obligation for a foreign investor, the tribunal emphasized the foreign investor’s public function, and the need for human rights not to be destroyed by either states or non-state actors in these circumstances. Yet, when seeking to determine whether this obligation was directly binding on the foreign investor in this instance, the tribunal focused on the nature of the legal obligations that usually bind private actors. The tribunal’s ultimate reliance on the need for contractual obligations to bind the foreign investor highlights that the tribunal considered the private legal framework to be more significant than the public function being

110 Ibid., para. 1206.

111 Ibid., paras. 1209–10.

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446 Edward Guntrip performed.112 Thus, based on the final outcome of this award, hybrid authority is ultimately viewed from a private perspective, and consequently, the state is deemed to be a private actor that should rely on private legal frameworks to bind foreign investors with human rights obligations. The tribunal’s conclusion aligns with the neoliberal foundations of IIL. Neoliberalism encourages the state to privatize public services in order to ensure that the services can be regulated in accordance with the market. By situating legal obligations that govern the operation of the service within the private sphere, it becomes more difficult for the state to intervene in the market. This is because unilateral variations to contractual obligations are not generally permitted in private law. By viewing the state as a private actor, the tribunal in Urbaser v Argentina has restricted the ability of the host state to intervene in the operation of the public service. By emphasizing the neoliberal ideologies that underpin IIL, the tribunal’s approach additionally supports the competition state thesis. By prioritizing the private sphere above the public sphere, the tribunal encourages states to regulate foreign investors (that bring capital from the global market to the state) in accordance with a neoliberal philosophy. As state intervention is minimized in accordance with this approach, the role for the welfare state is diminished. Therefore, the effect of the tribunal’s approach is to curtail the state’s public function. When combined with the operation of IIAs that further limit state intervention, the overall effect is that state authority in IIL in reduced. The altered role of the state, and the associated loss of state authority, has implications for the operation of the jurisdictional framework. Jurisdiction in international law is framed around states being the exclusive actors in international law. If state authority in international law becomes less significant, the foundations of the jurisdictional framework are undermined and become more isolated from the exercises of authority that actually occur. A risk then emerges that jurisdiction will fail to legitimize common exercises of authority in IIL. For example, when state authority is transferred to nonstate actors to perform public services, the jurisdictional framework fails to reflect how authority is exercised in practice. Arguably, Urbaser v Argentina demonstrates that the jurisdictional framework is already unable to accommodate exercises of this type of hybrid authority as neither frame of reference adopted by the tribunal could legitimize the authority being exercised jointly by the state and the foreign investor. In summary, from a jurisdictional perspective, the type of hybrid authority found in Urbaser v Argentina challenges a state-centric understanding of jurisdiction. This is because hybrid authority merges the authority of states and non-state actors and blurs the distinction between the public and private realms that underpin jurisdiction in international law. Additionally, when this type of hybrid authority is classified as falling within the private realm, it reflects the neoliberal agenda in IIL that seeks to minimize 112 Diane Desierto, ‘The ICESCR as a Legal Constraint on State Regulation of Business, Trade, and Investment: Notes from CESCR General Comment No. 24 (August 2017)’, EJIL Talk!, 13 September 2017, https://www.ejiltalk.org/the-icescr-as-a-legal-constraint-on-state-regulation-of-businesstrade-and-investment-notes-from-cescr-general-comment-no-24-august-2017.

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International Investment Law 447 state functions and the welfare state. Consequently, hybrid authority has the potential to undermine the centrality of state authority in IIL. Therefore, when hybrid authority is classified as a form of private authority within IIL, it directly undermines the statecentric foundations of the jurisdictional framework.

III.3. Hybrid Authority—the Host State and Investment Arbitration Investment arbitration provides several examples of jurisdictional practices that entail hybrid authority. For example, when investment disputes arise, disputing parties regularly confer investment arbitrators with the power to resolve investment disputes. As investment arbitrators interpret treaty obligations, states effectively delegate their interpretative and law-making powers to investment arbitrators.113 This practice enables a private actor to curtail state authority. The structure of investment arbitration also blends public and private. An investment dispute will usually focus on state conduct, in the form of a public act.114 Although decisions only bind disputing parties, an informal system of precedent is applied in practice,115 similarly to public courts. In addition to applicable domestic law, public international law is regularly invoked as a source of law.116 Conversely, investment arbitration’s procedures117 and remedial options are predominantly drawn from private forms of dispute resolution.118 In response to criticisms regarding its private nature, investment arbitration is becoming increasingly transparent.119 Consequently, the role of investment arbitrators, and the operation of investment arbitration more generally, can be classified as being hybrid in nature. 113 See Alec Stone Sweet and Florian Grisel, ‘Transnational Investment Arbitration: From Delegation to Constitutionalization’, in Pierre-Marie Dupuy, Francesco Francioni, and Ernst-Ulrich Petersman (eds.), Human Rights in International Investment Law and Arbitration (Oxford: Oxford University Press, 2009), 118–36; Anthea Roberts, ‘Power and Persuasion in Investment Treaty Interpretation: The Dual Role of States’, American Journal of International Law 104(2) (2010): 179–225; Alex Mills, ‘The Balancing (and Unbalancing?) of Interests in International Investment Law and Arbitration’, in Zachary Douglas, Joost Pauwelyn, and Jorge E. Viñuales (eds.), The Foundations of International Investment Law: Bringing Theory into Practice (Oxford: Oxford University Press, 2014) 437–65, 447–8. 114 Stephan Wittich, ‘The Limits of Party Autonomy in Investment Arbitration’, in Christina Knahr, Christian Koller, and Walter Rechberger (eds.), Investment and Commercial Arbitration (Utrecht: Eleven International Publishing, 2010), 47–71, 65–6; Andrea K. Bjorkland et al. (n. 18), 152. 115 Stephan Schill, ‘The Jurisprudence of Investment Treaty Tribunals: Between Public Good and Common Concern’, in Tullio Treves, Francesco Seatzu, and Seline Trevisanut (eds.), Foreign Investment, International Law and Common Concerns (Abingdon: Routledge, 2014), 10–25, 15; Stone Sweet and Grisel (n. 113), 129. 116 Eric de Brabandere, Investment Treaty Arbitration as Public International Law (Cambridge, Cambridge University Press, 2014), 100. 117 Wittich (n. 114), 65. 118 Alec Stone Sweet and Florian Grisel, The Evolution of International Arbitration: Judicialization, Governance, Legitimacy (Oxford: Oxford University Press, 2017), 1. 119 For a full discussion, see de Brabandere (n. 116), ch. 5.

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448 Edward Guntrip Whilst investment arbitration displays general characteristics associated with hybrid authority, the host state’s ability to be involved in two types of investment arbitration presents significant challenges for the jurisdictional framework. In accordance with the classic IIL paradigm, investment arbitration resolves disputes between foreign investors and host states (investor–state arbitration). This type of claim relies on hybrid authority because the foreign investor commences the claim based on the host state’s standing offer to arbitrate. The ability of a non-state actor to challenge state conduct in an international forum remains novel and alters the state’s traditional relationship with non-state actors in international law. However, many IIAs grant states the ability to resolve issues over the interpretation or application of the IIA with States Parties, giving rise to state–state arbitration.120 State–state arbitration draws on a state’s ability to interpret a treaty that binds it. The state’s ability to seek clarification regarding their treaty obligations forms part of their public role, operates on the international plane, and as such can be explained using the jurisdictional framework sourced from public international law. An intersection between investor–state arbitration and state–state arbitration arises because an award from a state–state arbitration can potentially negatively impact the rights of a foreign investor in a subsequent or parallel investor– state arbitration. For example, an award from a state–state arbitration may interpret an investment protection standard in a manner that narrows the protection offered to a foreign investor. Consequently, a host state could use state–state arbitration to protect its position in its capacity as a respondent state in an investor–state arbitration.121 Should this situation occur, the host state’s authority is simultaneously exercised in relation to claims that involve hybrid authority (investor–state arbitration) and state authority (state–state arbitration). This section addresses how jurisdictional practices seek to resolve this specific conflict. The use of state–state arbitration to interpret an IIA could potentially influence the scope of a foreign investor’s rights in two scenarios. First, a state may seek to use state– state arbitration to interpret an IIA independently of an investor–state arbitration claim.122 Although a foreign investor’s rights are affected in this scenario, it does not generate a direct conflict, because the state is not exercising authority in relation to the same dispute using different forms of arbitration. The second situation occurs when an interpretation is sought through state–state arbitration that is associated with either a pending or an existing investor–state dispute.123 In this case, an award from state–state 120 Michele Potestà, ‘Towards a Greater Role for State-to-State Arbitration in the Architecture of Investment Treaties?’, in Shaheeza Lalani and Rodrigo Polanco Lazo (eds.), The Role of the State in Investor–State Arbitration (Leiden: Brill, 2015), 249–73, 250. 121 Clovis Trevino, ‘State-to-State Investment Treaty Arbitration and the Interplay with Investor–State Arbitration under the Same Treaty’, Journal of International Dispute Settlement 5 (2014): 199–233, 225. 122 Anthea Roberts, ‘State-to-State Investment Treaty Arbitration: A Hybrid Theory of Interdependent Rights and Shared Interpretative Authority’, Harvard International Law Journal 55(1) (Winter 2014): 1–70, 8; Andreas Kulick, ‘State–State Investment Arbitration as a Means of Reassertion of Control: From Antagonism to Dialogue’, in Andreas Kulick (ed.), Reassertion of Control over the Investment Treaty Regime (Cambridge: Cambridge University Press, 2016), 128–52, 134–8. 123 Roberts (n. 122), 8; Kulick (n. 122), 134–8.

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International Investment Law 449 arbitration will be binding, but it remains unclear whether the award only binds the States Parties, or also subsequent tribunals that are interpreting the IIA, including any pending or existing investor–state arbitral proceedings.124 IIAs have not explicitly addressed the relationship between the two forms of arbitration125 and it has been left to investment tribunals to resolve this conflict.126 Two approaches that seek to reconcile the state’s dual exercise of authority in investment arbitration are evident from the jurisdictional practices addressing this issue. The first is sourced from an expert opinion submitted by Reisman in the state–state arbitration in Ecuador v USA.127 The submission of an expert opinion amounts to a jurisdictional practice because it forms part of the process by which investment arbitrators link law to the dispute in a formal dispute resolution setting. In his expert opinion, Reisman emphasized that investor–state arbitration should depoliticize investment disputes by removing a state’s ability to influence investor–state arbitration. To achieve this, he argued that investor–state arbitration should deal with substantive obligations between the disputing parties (i.e. investment protection standards).128 As a corollary, state–state arbitration should only be used for any residual matters.129 In taking this stance, Reisman circumscribed the state’s public role as a treaty party that is able to seek an interpretation of treaty terms using state–state arbitration. Instead, he prioritized the state’s capacity as a respondent in investor–state arbitration. In so doing, Reisman emphasized the supervisory role of investment arbitration ahead of the state’s ability to perform public functions. A contrasting view has been endorsed in the academic literature.130 It is debatable whether academic discussion can amount to a jurisdictional practice. However, jurisdictional practices can be understood to encompass assertions of authority.131 If this concept is construed broadly, academic literature can be considered to be an assertion by an expert of how the law should be interpreted, often aimed at those bodies that have the power to change the law. Investment tribunals refer to academic commentary in their awards. Thus, although academic debate occurs outside of the legal framework,

124 Trevino (n. 121), 221. Cf. Loretta Malintoppi and Hussen Haeri, ‘The Non-Disputing State Party in Investment Arbitration’, in David Caron et al. (eds.), Practising Virtue: Inside International Arbitration (Oxford: Oxford University Press, 2015), 565–83, 582. 125 Kulick (n. 122), 128. 126 To date, state–state arbitration has only been invoked in Luchetti v Republic of Peru, ICSID Case No. ARB/03/4, Award on Jurisdiction, 7 February 2005; Republic of Italy v Republic of Cuba, Ad Hoc Arb Tribunal, Interim Award, 15 March 2005; Final Award, 15 January 2008; and The Republic of Ecuador v The United States of America, PCA Case No. 2012–05. 127 Republic of Ecuador v The United States of America, PCA Case No. 2012–05, Opinion with Respect to Jurisdiction in the Interstate Arbitration Initiated by Ecuador Against the United States, 24 April 2012, https://www.italaw.com/sites/default/files/case-documents/ita1061.pdf. 128 Ibid., Expert Opinion, paras. 29–30. 129 Ibid. 130 See Roberts (n. 122); Trevino (n. 121); cf. Jarrod Wong, ‘The Subversion of State-to-State Investment Treaty Arbitration’, Columbia Journal of Transnational Law 53(6) (2014): 6–47. 131 Sundhya Pahuja, ‘Laws of Encounter: A Jurisdictional Account of International Law’, London Review of International Law 1(1) (2013): 63–98, 70.

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450 Edward Guntrip it is an assertion that can indirectly impact authorizations of authority and become part of the jurisdictional practice. The view espoused in the academic literature permits state-state arbitration to operate in conjunction with investor–state arbitration. The use of state–state arbitration is argued to extend to the interpretation of substantive obligations, based in part, on the text of IIAs that enable state–state arbitration.132 From the perspective of public international law, this view aligns with states possessing an ongoing interest in the interpretation of treaties to which they are party.133 To resolve any difficulties that may arise from the parallel application of state–state and investor–state arbitration, the literature suggests that temporal limitations should determine when an interpretation resulting from state–state arbitration should be adopted.134 Therefore, if an award from a state–state arbitration precedes the handing down of an award from a related investor– state arbitration, it should ideally be applied.135 If the state–state award is handed down afterwards, the related investor–state arbitral award will remain binding between the parties to the dispute.136 When formulating this approach, Roberts stresses that there is a need to recognize the hybrid interpretative authority shared between the state, the foreign investor, and the investment tribunals.137 Whilst this is correct, the focus of this section remains the subsequent conflict that emerges between the nature of the host state’s authority in investor–state arbitration and state–state arbitration. With regards to the latter form of hybrid authority, the proposed framework prioritizes the public role of the state as a treaty party above its role as a private disputing party. This is because, once an interpretation of an IIA is made in state–state arbitration, it can prevail over subsequent interpretations. This approach accentuates state authority, which aligns with the jurisdictional framework in public international law. By permitting states to exercise authority in two different types of investment arbitration, IIAs potentially permit states to exercise classic state authority and hybrid authority in relation to the same event. The responses to the dual application of state authority in this manner has been to try and classify the exercise of state authority in accordance with notions of public and private within the jurisdictional framework. The view that prioritizes the state’s function as a disputing party emphasizes that the state’s public function has been diminished. The state cannot determine the content of investment protection standards using state–state arbitration because states have conferred this power upon investment arbitrators who perform this function in investor–state arbitration. This view aligns with IIL’s neoliberal foundations. The delegation of state authority to private actors reflects the need for state conduct to be supervised through an apolitical dispute resolution forum.138 In accordance with this philosophy, states should not be able to influence the content of these standards in a way that may increase the scope 132 Roberts (n. 122), 11. 133 Ibid., 14. 134 Trevino (n. 121), 225; Roberts (n. 122), 63–4. 135 Trevino (n. 121), 225. Roberts (n. 122), 66. 136 Trevino (n. 121), 229. 137 Roberts (n. 122), 52–4. 138 Whether investment arbitration can be considered to be apolitical, and whether its existence attracts foreign investors, remain contentious points. See Jonathan Bonnitcha, Lauge N. Skovgaard Poulsen, and Michael Waibel, The Political Economy of the Investment Treaty Regime (Oxford: Oxford University Press, 2017), 193–8 and 155–6 respectively.

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International Investment Law 451 of their authority by either avoiding liability, or alternatively, intervening in the market. As a result, restrictions are placed on the state’s ability to regulate. Similarly to the first example of hybrid authority, by curtailing the state’s ability to regulate, investment arbitration can be seen to contribute to the demise of the welfare state and give rise to the competition state. The competition state limits the public functions of the state and undermines the centrality of state authority in the jurisdictional framework. In contrast, if states are given the power to seek interpretations of IIAs using state–state arbitration, the exercise of state authority falls within the jurisdictional framework. However, the jurisdictional framework does not recognize hybrid authority. Consequently, the influence of hybrid authority on state authority is not captured and hybrid authority is not understood to amount to legitimate authority. Therefore, attempts to reconcile the dual operation of state–state arbitration and investor–state arbitration within the existing jurisdictional framework have either minimized state authority by limiting its public function, or enhanced state authority at the expense of hybrid authority.

III.4. Preliminary Conclusion Jurisdictional practices in IIL evidence that the jurisdictional framework is challenged by exercises of hybrid authority. To date, investment arbitrators and academic commentators have struggled to address the transnational nature of this form of authority. In response, both revert to the existing jurisdictional framework. When a private perspective is adopted to accommodate hybrid authority, jurisdictional practices evidence the strength of the neoliberal agenda in IIL and the loss of the welfare state to the competition state. In turn, this undermines the centrality of state authority within the jurisdictional framework. Alternatively, relying solely on public international law does not confer hybrid authority with legitimacy. In both cases, hybrid authority is classified in accordance with the existing jurisdictional framework in international law but does not easily sit within either. Jurisdiction in international law has not adapted to hybrid authority in IIL because the ideologies underpinning jurisdiction have prevented the jurisdictional framework from recognizing the altered function of the state in international law. Nonetheless, jurisdictional practices are subject to change, so it may be possible for hybrid authority to be recognized in the future.

IV. Changing Jurisdictional Practices Whilst IIL struggles to adopt hybrid authority within the jurisdictional framework, steps are being taken to acknowledge hybrid authority in the field of international human rights law. A recent jurisdictional practice from this field assists in determining whether jurisdiction in international law will be able to encompass exercises of hybrid authority in IIL in the future.

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452 Edward Guntrip In the context of international human rights law, the UN Committee on Economic, Social and Cultural Rights (CESCR) has taken positive steps to acknowledge hybrid authority. CESCR has the power to interpret the International Covenant on Economic, Social and Cultural Rights (ICESCR)139 by issuing General Comments.140 General Comments amount to jurisdictional practices. When addressing the intersection of business and human rights in its General Comment 24,141 CESCR commented on the type of hybrid authority that is generated by interactions between the host state and the foreign investor as a result of privatization. CESCR stated that privatization was not prohibited, but stated that, when services are privatized, states are required to impose ‘public service obligations’ on private actors that operate in public sectors.142 The precise nature of these obligations was not specified; however, they are intended to protect the human rights of the end user of the service.143 CESCR did not stipulate whether the state must impose these obligations within the state’s private or public capacity. By a cknowledging the interaction that arises between states and non-state actors, CESCR has linked the main divisions that exist within the jurisdictional framework. CESCR has bridged the divide in the jurisdictional framework by recognizing that public functions require a welfare element even if provided by a private actor. In so doing, CESCR has acknowledged the altered role of the state and the significance of its interactions with non-state actors. Jurisdictional practices in IIL evidenced that key actors in IIL were unable to achieve this due to the neoliberal philosophies that influence how IIL functions. A neoliberal approach requires states to impose human rights obligations through private law obligations and restricts the welfare function of the state. In contrast, CECSR does not specify the legal framework that must be used to impose the ‘public service obligations’. Thus, CESCR has focused on the functions associated with the provision of public services rather than the form of legal relationship that governs states and non-state actors respectively in accordance with the jurisdictional framework. Notwithstanding, General Comment 24 is still framed in terms of state obligations. This is inevitable as States Parties are bound by the ICESCR and CESCR must direct its interpretation to the actors in international law that are subject to the obligations. From a jurisdictional perspective, the ICESCR requires CESCR to prioritize the state, and the state-centric jurisdictional framework. As a result, despite the progress made in General Comment 24, CESCR cannot fully legitimize exercises of hybrid authority because the non-state actor remains subordinated to the state and does not have obligations under ICESCR.

139 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), 993 UNTS 3. 140 See Malcolm Langford and Jeff A. King, ‘Committee on Economic, Social and Cultural Rights’, in Malcolm Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2009), 480–1. 141 CESCR, General Comment No. 24: State obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities, E/C.12/GC/24, 10 August 2017. 142 Ibid., paras. 21. 143 Ibid., paras. 21–2.

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International Investment Law 453 The practice of CESCR evidences that some steps can be taken to acknowledge hybrid authority in international law. However, if international law is to fully endorse hybrid authority, the jurisdictional framework will need to respond to the altered function of the state. For such a shift to occur, the limitations of relying on a domestic construct of authority in international law need to be recognized. This includes embracing the relativity of state authority, and in particular, how non-state actors contribute to this relativity. Roughan has theorized that state authority can be relative and legitimate based on its interrelationships with other sources of authority.144 For authorities to be relative, they must be ‘mutually constitutive and mutually constraining’ and ‘cannot alone have independent legitimacy because of the existence of the other and the need for interaction’.145 When relative authorities exist, their legitimacy is contingent on the existence of a justifiable relationship between the authorities.146 A justifiable relationship emanates when the interrelated authorities share subjects or govern activities that bring interaction.147 Relative authority can encompass private sources of authority, provided that they interact with ‘uncontroversially public authorities’ that generate relativity.148 Relative authority applies to some exercises of hybrid authority in IIL. When states and non-state actors perform joint functions, such as the provision of water supplies and sanitation services, the respective exercises of authority are interdependent. The foreign investor cannot provide the service without the state devolving its authority and the state cannot provide the service without the foreign investor. The interactions create a justifiable relationship because both authorities govern the same activity. The fact that the foreign investor is a non-state actor is not significant, as the state can be clearly understood to be a public authority. Consequently, the joint exercise of authority by states and non-state actors in IIL could, in certain circumstances, be deemed to be legitimate in accordance with the idea of relative authority. The acceptance of hybrid authority based on the theory of relative authority would generate a starting point to examine the interactions that arise in this situation. However, for relative authority to become part of the jurisdictional framework there would need to be full acceptance of hybrid authority by key actors in the regime. Based on the jurisdictional practices identified in IIL, actors in IIL tend to classify hybrid authority with reference to the existing jurisdictional framework. In short, at present, actors in IIL do not appear to be willing to amend jurisdiction in international law to accommodate the types of hybrid authority identified in the regime.

V. Conclusion Jurisdiction in international law reflects a state-centric ideology that is challenged by exercises of hybrid authority in IIL. Given that transnational law falls outside of the 144 Roughan (n. 36), 137. 145 Ibid., 138. 147 Ibid., 138. 148 Ibid., 191.

146 Ibid., 138.

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454 Edward Guntrip jurisdictional framework, hybrid authority remains unrecognized within the i nternational legal system. Jurisdictional practices in IIL evidence that hybrid authority in IIL is evaluated with reference to public or private frames of reference sourced from the state-centric jurisdictional framework. When a private framework is applied to hybrid authority it gives effect to the aims of neoliberalism and encourages the competition state. State authority becomes minimized, which undermines the premise that the jurisdictional framework reflects the significance of the state in international law. When a public frame of reference is adopted, the centrality of state authority is emphasized to the extent that the influence of hybrid authority on the state is overlooked. Whilst there are indications that hybrid authority could become acknowledged as part of i nternational law, as Roughan’s concept of relative authority illustrates, key actors in international law will need to reassess how they understand jurisdiction to function before significant changes are made. Until this happens, hybrid authority is unlikely to be accommodated by jurisdiction in international law. This conclusion presents several challenges regarding how authority is understood in international law and how international law is created. As jurisdiction is not capable of conferring hybrid authority with legitimacy, there are many practices in IIL that involve non-state actors that remain unregulated. If our understanding of jurisdiction fails to keep pace with common exercises of hybrid authority in IIL, it will no longer serve its purpose of creating law which reflects exercises of authority.

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Chapter 19

Conceptions of State J u r isdiction i n th e J u r ispru dence of th e I n ter nationa l Cou rt of J ustice a n d th e Per m a n en t Cou rt of I n ter nationa l J ustice Daniel Costelloe*

I. Introduction

456

II. Distinctions and Classifications

458

III. The Meaning of Jurisdiction as Regulatory Power in the Court’s Jurisprudence

459

IV. The ‘Reserved Domain’ and the Plea of Domestic Jurisdiction461 V. The Limits on One State’s Regulatory Authority as a Consequence of Other States’ Regulatory Authority: the Lotus Case

469

VI. Specific Restrictions on a State’s Regulatory Authority

477

VII. Conclusions

479

* The author would like to thank Professor Malgosia Fitzmaurice, Manuel Casas, and Dr Daniel Peat for their helpful comments on this chapter. All views remain the author’s own and should not be attributed to any other person or to any institution.

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456 Daniel Costelloe

I. Introduction The state is an intellectual abstraction. It is a unit with a corporate identity separate from, and that endures beyond, its composition, government, or ruler at any given moment. Yet however nuanced the notion of the state has become, however rich its history, and however problematic some of its manifestations, it remains inseparable from authority under law over territory and, to a certain extent, beyond. And however nuanced international law has become in its strides towards protecting the individual, it is in the notion of the state that many of its kernels lie: in the idea of personality; in the conditions for statehood; and in the acceptance of formal equality between such units notwithstanding historical, political, and economic inequality. The right to exercise jurisdiction under international law is part of what it means to be a state. That such jurisdiction—a relation of the ever-difficult of ‘sovereignty’,1 though that term must be distinguished2—is in the first instance territorial has become a premise, even if that was not always the case.3 Today, we take the regulatory authority of the state under international law for granted, and it has become an assumption of the international legal system that requires little explanation and no justification.4 This conception of the state’s jurisdiction has grown increasingly complex as far as its theory, extent, and limits are concerned, and judicial organs have played a part in drawing up its contours. This chapter explores the manner in which the principal inter-state judicial organs of the twentieth and twenty-first centuries—the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ)—have analysed and applied conceptions of state jurisdiction in their contentious and advisory jurisprudence. In doing so, these Courts contributed to the articulation of the permissible scope of state regulation under international law. The chapter concludes with observations about the limits and future of these conceptions of state jurisdiction in the judicial setting.

1 In Military and Paramilitary Activities in and against Nicaragua, the ICJ described ‘sovereignty’ as the principle ‘on which the whole of international law rests’. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, [1986] ICJ Rep. 14, 133 (para. 263). 2 F. A. Mann, ‘The Doctrine of Jurisdiction in International Law’, Recueil des Cours 111 (1964–I): 1, 15–17. 3 In times past, the jurisdiction of a ruler even within a given territory was subject to limitations stemming from higher authority that no longer exist today. For discussion, see J. P. Canning, ‘Law, Sovereignty and Corporation Theory’, in J. H. Burns (ed.), The Cambridge History of Medieval Political Thought c. 350–c. 1450 (Cambridge: Cambridge University Press, 1988), 454, 464, 466. The principles rex qui superiore non recognoscit—the king is he who recognizes no superior—and rex in regno sui est imperator regni sui—the king is emperor in his realm—represented a gradual loosening of the imperial and papal authority over polities in medieval and early modern political thought. See further Cedric Ryngaert, Jurisdiction in International Law, 2nd edn (Oxford: Oxford University Press, 2015), 49–50. 4 Early conceptions of jurisdiction were riddled with nuances that have largely become insignificant today as a function of the way in which the territorial state has developed as a legal person. Thus, for example, medieval distinctions between universal sovereignty and territorial sovereignty have largely fallen away, though one of the core meanings of jurisdiction (i.e. the non-recognition of a superior) remains. See Canning (n. 3), 468–9.

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State Jurisdiction in the ICJ and the PCIJ 457 In modern international law, the state’s regulatory authority goes beyond the state’s territory. In certain circumstances, the state is permitted, in accordance with accepted ‘heads’ of jurisdiction under international law, to exercise certain forms of regulatory authority—in the form of regulation by legislation, less frequently in the form of enforcement—with respect to actions or conduct outside its territory, provided that a sufficiently recognized tie between the state and the act can be established.5 The most widely accepted of these bases is nationality.6 The most important limitation on a state’s regulatory authority is systemic, however: in principle, one state’s authority ends where another’s begins. This limitation takes for granted the formal equality of states.7 In a strictly territorial world, such lines would be easy to draw and observe, yet the extension of actions and their effects in certain circumstances beyond the territory of a state results in overlapping claims to jurisdiction in certain cases between two or more states. Jurisdiction is not zero-sum, and it is perfectly possible for more than one state to be entitled to exercise jurisdiction over a person in accordance with international law.8 It is almost inevitable, therefore, that overlapping claims to jurisdiction can become an issue in the settlement of international disputes. Textbooks on international law tend to offer neat taxonomies of the forms that a state’s jurisdiction can take. They generally differentiate, at least in the context of criminal jurisdiction, between ‘prescriptive’ jurisdiction and ‘enforcement’ jurisdiction. A third putative category, ‘adjudicative’ jurisdiction, is sometimes added, though it may simply

5 The categorization of the various heads of jurisdiction, at least in criminal matters, owes much to the Harvard Research on International Law, ‘Draft Convention on Jurisdiction with Respect to Crime’, American Journal of International Law 29 Supp. (1935): 439. See generally Michael Akehurst, ‘Jurisdiction in International Law’, British Yearbook of International Law 46 (1972–3): 145; Robert Jennings, ‘Extraterritorial Jurisdiction and the United States Antitrust Laws’, British Yearbook of International Law 33 (1957): 146. 6 See Alex Mills, ‘Rethinking Jurisdiction in International Law’, British Yearbook of International Law 84 (2014): 187, 198–9. There are also certain gradations in regulatory authority recognized in multilateral treaties, e.g. in respect of a coastal state’s authority over certain activities in the Contiguous Zone and in the Exclusive Economic Zone. See UN Convention on the Law of the Sea (signed 10 December 1982, entered into force 16 November 1994), 1833 UNTS 396 (UNCLOS), Arts. 33, 56. 7 The formal equality of states can seem artificial in light of inequalities between them. One need only think of Frederick the Great of Prussia’s anecdotal words upon meeting the Baron von Grote and entering his lands, ‘voilà deux souverains qui se rencontrent’. They must have been tinged with irony. Eduard Vehse, Geschichte der deutschen Höfe seit der Reformation, vol. 18 (Hamburg: Hoffmann und Campe, 1853), 40. 8 See e.g. Mills (n. 6), 199. Max Huber offered general remarks on territorial sovereignty in Island of Las Palmas (Netherlands/United States of America) (1928) II UNRIAA 829, 838: ‘Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.’

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458 Daniel Costelloe amount to the putting into practice of the first or the second category.9 No neat taxonomy has emerged in the jurisprudence of the PCIJ and the ICJ. This is in part because the ICJ has not had the opportunity to address these distinctions in their full refinement. More important, in this jurisprudence, is the idea of ‘domestic jurisdiction’ in contrast to international law, a distinction that has become associated with the so-called ‘reserved domain’.

II. Distinctions and Classifications Before proceeding, it is necessary, as always, to draw certain elementary distinctions. Terminological clarity has always been, and always will be, the first step in any analysis of legal terms and concepts. This is especially the case where the term is as fundamental as ‘jurisdiction’ and is even the case where the discussion focuses on international decisions. The first, most obvious and most important point is that ‘state jurisdiction’ is distinct from ‘jurisdiction’ when used to describe a judicial or quasi-judicial body’s competence to decide a given dispute. Here, too, however, terms quickly become murky, since jurisdiction in English is equivalent to compétence in French, yet certain English-language versions of ICJ decisions have drawn a further distinction between ‘jurisdiction’ and ‘competence’.10 The Court’s Statute itself uses both terms: it uses ‘competence’ in the heading of Chapter II, which covers both access to the Court and the Court’s jurisdiction, and uses the term ‘jurisdiction’ in Article 36 to describe the extent of the Court’s power to adjudicate.11 This chapter uses the term ‘state jurisdiction’ in a comparatively generic sense. In this chapter, that term broadly encompasses notions such as ‘domestic jurisdiction’ and the ‘reserved domain’—which describe matters that fall within domestic jurisdiction by default, because they are not regulated by international law, and in relation to which the 9 Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’, Journal of International Criminal Justice 2 (2004): 735, 737–8. 10 See Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, 2 vols. (Cambridge: Grotius Publications, 1986), II, 434–5; Shabtai Rosenne, The Law and Procedure of the International Court 1920–1996, 4 vols., 3rd edn (Leiden: Brill, 1997), II, 528–36; Corfu Channel (United Kingdom v Albania), Preliminary Objections, [1948] ICJ Rep. 15, 39 (Judge ad hoc Daxner, diss.). See also the distinction as reflected in the Convention on the Settlement of Investment Disputes between States and Nationals of Other States between the ‘jurisdiction’ of the International Centre for Settlement of Investment Disputes and the ‘competence’ of an arbitral tribunal established under that convention. Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 575 UNTS 159 (concluded 18 March 1965, entered into force 14 October 1966), Arts. 25, 41. 11 Statute of the ICJ, Chapter II and Art. 36. The Rules of the Court also use the term ‘jurisdiction’ to describe the extent of the Court’s adjudicative power. See e.g. Rules of the ICJ, Art. 38.

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State Jurisdiction in the ICJ and the PCIJ 459 state enjoys regulatory freedom—as well as ‘state jurisdiction’ in the context of the extent of a state’s regulatory authority as governed by international law. In the latter context, a state cannot claim regulatory freedom, but must generally invoke a legally accepted ‘head’ of jurisdiction that authorizes it to exercise its authority in relation to certain conduct or persons. The term in this chapter also refers to a state’s adjudicative jurisdiction as limited by specific rules of international law. This is most relevant in relation to the immunity of states from foreign jurisdiction. While terms differ depending on context, these are all manifestations of a single notion: a state’s authority to regulate conduct, persons, and property under international law. More broadly, the concept of state jurisdiction is also related to other central notions in international law, including the formal equality of states as reflected in Reparation for Injuries,12 the attributes of sovereignty as reflected in The Wimbledon,13 and the principle of non-intervention in the domestic affairs of another state as set out in Military and Paramilitary Activities.14 The second distinction concerns the use of the word ‘jurisprudence’ in the title of this chapter. The ICJ’s and PCIJ’s respective jurisprudence, in the sense of previous decisions, comprises each Court’s judgments and their orders supported by reasoning. The jurisprudence of the Court does not include separate opinions, dissenting opinions, and declarations. Nevertheless, individual judges’ separate or dissenting opinions and declarations can offer valuable analysis and statements of principle and thereby have jurisprudential significance. These opinions and declarations can test, correct, or clarify the Court’s judgments or orders in light of previous decisions. Consequently, this chapter considers such opinions and declarations where appropriate. With these distinctions in mind, we turn to the concept of state jurisdiction in the contentious and advisory jurisprudence of the ICJ and the PCIJ.

III. The Meaning of Jurisdiction as Regulatory Power in the Court’s Jurisprudence ‘Jurisdiction’ is a difficult term because it is used in a variety of ways depending on the context. It is also often left undefined, on the assumption that the reader understands its meaning. The qualification of the term through the addition of the word ‘state’ d elineates the concept but does not necessarily contribute to the characterization of that term. As 12 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ Rep. 174, 177–178, 180. 13 The SS ‘Wimbledon’ (United Kingdom and Others v Germany), 1923 PCIJ Series A, No. 1, 25. 14 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (n. 1), 106–110 (paras. 202–209).

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460 Daniel Costelloe noted earlier, ‘state jurisdiction’ refers to the authority of a state to regulate conduct, persons or property within the limits of international law. Francis Mann opened his Hague Lectures on the doctrine of jurisdiction by stating that ‘when public international lawyers pose the problem of jurisdiction, they have in mind the State’s right under international law to regulate conduct in matters not exclusively of domestic concern’.15 It involves, more specifically, a state’s or indeed international organization’s right under international law to exercise its authority.16 In Territorial Jurisdiction of the International Commission of the River Oder, the PCIJ noted, albeit in relation to the ‘jurisdiction’ not of a state but of the International Commission of the River Oder over internationalized waterways in accordance the applicable provisions of the Treaty of Peace between the Allied and Associated Powers and Germany of 28 June 1919, the Treaty of Versailles, that ‘[t]he Court considers that this word [i.e. “jurisdiction”] relates to powers possessed by the Commission under treaties in force; the questions referred to the Court relate to the territorial limits of these powers’.17 The term ‘jurisdiction’ was also equated with ‘powers’ in the Court’s advisory opinion on the Jurisdiction of the European Commission of the Danube between Galatz and Braila.18 These opinions are referred to here only for general reference and for guidance on the Court’s understanding of ‘jurisdiction’ as a form of power. Beyond this general point, the opinions must be confined to their context, which concerned international organizations established by the Treaty of Versailles for specific internationalized cooperation following the First World War. Nevertheless, as far as the general meaning of the word ‘jurisdiction’ in international law is concerned, they provide terminological assistance. Replacing the word ‘jurisdiction’ by ‘powers’, however, scarcely advances the discussion of how this concept has been applied in the ICJ’s and PCIJ’s jurisprudence. A more complete consideration of these Courts’ respective judgments and orders is necessary in order to achieve a fuller characterization of the term ‘jurisdiction’ as applied in judicial practice. It is also necessary to have regard to the specific issues in which state jurisdiction became legally relevant, and what the legal consequences of the application of these principles were. The discussion of this jurisprudence indicates that the term ‘state jurisdiction’ is a negatively defined concept that can only fully be understood in relation, and by reference, to other, competing features of the international legal system.

15 Mann (n. 2), 9. The words ‘not exclusively of domestic concern’ in the quoted passage mean that the matter must involve a relevant issue of international law. 16 Ibid. The Harvard Draft Convention defines a state’s jurisdiction for the purposes of the draft convention as ‘its competence under international law to prosecute and punish for crime’. See Harvard Draft Convention on Jurisdiction with Respect to Crime (n. 6), Art. 1(b). 17 Territorial Jurisdiction of the International Commission of the River Oder, PCIJ Series A, No. 23, 16. 18 Jurisdiction of the European Commission of the Danube between Galatz and Braila, PCIJ Series B, No. 14, passim.

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State Jurisdiction in the ICJ and the PCIJ 461

IV. The ‘Reserved Domain’ and the Plea of Domestic Jurisdiction The notion that certain areas are independent of and unaffected by rules of international law goes to the heart of what it means to think of international jurisdiction in contradistinction to national jurisdiction. While the lines have shifted over the decades, the distinction continues to occupy a privileged place in this juridical edifice. At the same time, it has become an assumption of the international legal system, and of a normative conception of the relations between states, that the power of a state to legislate and enforce its laws is not unlimited. If it were unlimited, the very concept a ‘state’ as an entity which, by virtue of this status alone and irrespective of size, population, or wealth, possessed in equal measure to all other such entities the power to legislate and to enforce its laws, would be under siege. It is undisputed that the authority of the juridical concept of a ‘state’ to legislate and to enforce its laws is limited in various manners. It is limited ‘from above’, so to speak, through the rules and principles of general international law and treaties in force at a given time. It is limited ‘horizontally’, again so to speak, through the coexistence with other states, each of which possesses equivalent regulatory authority. The limitations of state jurisdiction through international law and through the presence of other states describe different aspects of the way in which the same normative system—international law—limits the jurisdiction of each state as a participant in that system. The locus classicus of this conception of domestic jurisdiction is the PCIJ’s advisory opinion on Nationality Decrees Issued in Tunis and Morocco. This opinion concerned the application and limits of a term introduced in Article 15(8) of the Covenant of the League of Nations—‘domestic jurisdiction’—which James Brierly described in 1925 as ‘a phrase which already shows signs of becoming a new catchword’.19 While this is the leading case in what would become known as the ‘reserved domain’ of domestic jurisdiction, the doctrine that recognized different ‘domains’ respectively subject to national and to international legal regulation was not new to international dispute settlement. The International Committee of Jurists, for example, had already applied the principle of domestic jurisdiction as set out in Article 15(8) of the Covenant of the League of Nations in its 5 September 1920 report in the territorial dispute between Sweden and Finland concerning the Åland Islands.20 19 J. L. Brierly, ‘Matters of Domestic Jurisdiction’, British Yearbook of International Law 6 (1925): 8. 20 ‘Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the task of giving an advisory opinion upon the legal aspects of the Aaland Islands question’, League of Nations Official Journal Special Supplement 3 (1920): 3. The Committee stated as follows: ‘The legal nature of a question cannot be dependent upon the fact that a Member of the League of Nations, which may or may not be a party to the dispute, chooses to submit it to the Council. A question is either of an international nature or belongs to the domestic jurisdiction of a State, according to its intrinsic and

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462 Daniel Costelloe In Nationality Decrees, the Court was asked to answer the question, referred to it by a resolution of the Council of the League of Nations of 4 October 1922, whether the dispute between Great Britain and France arising out of the latter’s issuing of nationality decrees relating to Tunis and to the French zone of Morocco was, under international law, solely a matter of ‘domestic jurisdiction’ within the meaning of Article 15(8) of the Covenant.21 Although in the form of an advisory opinion, the opinion in essence served as a preliminary objection by France to the jurisdiction of the Council on the basis that the issuing of such decrees was solely a matter of domestic jurisdiction and did not raise any issues of international law.22 The president of the French Republic had, in November 1921, issued decrees conferring French nationality on certain residents of Tunis and of the French Zone of Morocco. The bey of Tunis and the king of Morocco respectively introduced legislation to implement the decrees that the president of France had issued. Great Britain complained that the conferral of French nationality upon residents of these territories came into conflict with the rights of British nationals residing there. The parties agreed to refer the dispute to the Council of the League of Nations, which in turn referred the question whether the dispute was a matter purely of domestic jurisdiction within the meaning of Article 15(8) of the Covenant to the PCIJ for an advisory opinion.23 The Council sought an opinion on the question: Whether the dispute between France and Great Britain as to the Nationality Decrees issued in Tunis and Morocco (French zone) on November 8th, 1921, and their application to British subjects, is or is not, by international law, solely a matter of domestic jurisdiction (Article 15, paragraph 8 of the Covenant).24

special characteristics’ (at 4). It also found specifically with respect to self-determination: ‘A dispute between two States concerning such a question, under normal conditions therefore, bears upon a question which International Law leaves entirely to the domestic jurisdiction of one of the States concerned. Any other solution would amount to an infringement of sovereign rights of a State and would involve the risk of creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in the term “State,” but would also endanger the interests of the international community’ (at 5). 21 Art. 15 of the Covenant provided that ‘[i]f there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council’. Art. 15(8), however, provided that ‘[i]f the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement’. Art. 15(8) formalized the principle of the reserved domain of national jurisdiction, but the provision applied only to the Council of the League of Nations, not to the Permanent Court. Brierly (n. 19), 8–14. See further H. A. Amankwah and D. T. Wilson, ‘International Law and the Doctrine of the Reserved Domain of States: An Unruly Horse’, University of Ghana Law Journal 7 (1970): 125, 128–9. 22 C. H. M. Waldock, ‘The Plea of Domestic Jurisdiction Before International Legal Tribunals’, British Yearbook of International Law 31 (1954): 96. 23 For a summary of the procedure and the parties’ respective cases in these proceedings, see William Latey, ‘The Anglo-French Tunis Dispute’, Transactions of the Grotius Society 9 (1923): 49, 50–8. 24 Nationality Decrees Issued in Tunis and Morocco, PCIJ Series B, No. 4, 21.

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State Jurisdiction in the ICJ and the PCIJ 463 Both France and Great Britain made submissions to the Court in these advisory proceedings. The Court in this opinion offered several statements of principle on the relationship between the ‘reserved domain’ of domestic jurisdiction and a state’s international legal obligations. While the term ‘reserved domain’ can be slightly misleading, since it is unclear who or what is ‘reserving’ a matter for national jurisdiction and isolating it from the requirements of international law, it has become an accepted term and helps to illustrate the ever-moving dividing line between national jurisdiction and the requirements of international law. The Court first observed, in relation to Article 15(8) of the Covenant, that ‘[t]he words “solely within the domestic jurisdiction” seem rather to contemplate certain matters which, though they may very closely concern interest of more than one State, are not, in principle, regulated by international law. As regards such matters, each State is sole judge.’25 The Court then added an important passage: The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain. For the purpose of the present opinion, it is enough to observe that it may well happen that, in a matter which, like that of nationality, is not, in principle, regulated by international law, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law.26

As Sir Humphrey Waldock noted with respect to this opinion, ‘[t]he reserved domain, as a constitutional doctrine, does not therefore establish in regard to defined categories of matters a fixed distribution of powers between international jurisdiction and the reserved jurisdiction of the individual State’.27 He concluded: ‘The boundary of the reserved domain of each State alters with every development in general international law.’28 This is in accordance with the Court’s position that the boundaries of the reserved domain concerned ‘an essentially relative question’ and that the reserved domain ‘depends upon the development of international relations’.29 This observation lies at the 25 Ibid., 23–4. 26 Ibid., 24. 27 Waldock (n. 22), 140. 28 Ibid. 29 Nationality Decrees Issued in Tunis and Morocco (n. 24), 24. See further Aegean Sea Continental Shelf (Greece v. Turkey), [1978] ICJ Rep. 3, 24–5 (para.59). The Institut de droit international adopted a similar definition, albeit with reference to international law rather than international relations: ‘La détermination du domaine réservé et ses effets’, Annuaire de l’Institut de droit international 2 (1954): 150 (Art. 1): ‘Le Domaine réservé est celui des activités étatiques où la compétence de l’Etat n’est pas liée par le droit international. L’étendue de ce domaine dépend du droit international et varie suivant son développement.’ On this definition, see Humphrey Waldock, ‘General Course on Public International Law’, Recueil des Cours 106 (1962–II): 1, 182. The line between domestic and international jurisdiction can also depend on constitutional arrangements and their relationship to international law. See Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, PCIJ Series A/B, No. 44, 22–25.

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464 Daniel Costelloe core of the relationship between the jurisdiction of an individual state and international law. The content of one is negatively defined as what is not the content of the other. Most interesting for practical purposes are two possible legal implications of the doctrine of domestic jurisdiction. The first concerns the test for identifying when, as a preliminary question in legal proceedings, a question lies within domestic or within international jurisdiction; the second concerns the effects of a plea of domestic jurisdiction in litigation before an international court or tribunal, and the appropriate point in the proceedings at which the court or tribunal should consider such a plea. In relation to the test, many preliminary questions can, arguably, overlap at least to some extent with the merits a case. That said, it does seem possible to make at least a prima facie determination, for the purpose of answering the preliminary question whether a matter lies solely within domestic jurisdiction, of whether the matter raises arguable points of international obligation.30 In Nationality Decrees, the Court noted that the mere fact that a party brought a dispute before the League of Nations or appealed to international legal obligations to contest a state’s exclusive jurisdiction was insufficient, by itself, to lend an international character to the dispute.31 Rather, it was only as soon the international ‘legal grounds’ a party relied on had, provisionally at least, a ‘juridical importance’ for the dispute, and as soon as the question whether a state was competent to act in a certain manner depended on the validity and construction of these ‘legal grounds’, that the dispute assumed an international character.32 The Court was ultimately of the opinion that ‘the dispute referred to in the Resolution of the Council of the League of Nations of October 4th, 1922, is not, by international law, solely a matter of domestic jurisdiction (Article 15, paragraph 8 of the Covenant)’. Questions of treaty interpretation ipso jure involve a question of i nternational law.33 In its advisory opinion on the Exchange of Greek and Turkish Populations, for example, the PCIJ held that the difference of opinion regarding the word ‘established’ in Article 2 of the Convention of Lausanne of 30 January 1923 c oncerning the exchange of Greek and Turkish populations involved a question of international law, and that it was not a question of domestic concern between the local administration and its inhabitants. Rather, the difference of opinion concerned two states that had concluded a treaty. The ICJ came to the same conclusion in its advisory opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania: 30 Waldock (n. 22), 112. According to Waldock, even a minimal international element is sufficient to support provisional finding that the matter lies within international rather than purely domestic jurisdiction. 31 Nationality Decrees Issued in Tunis and Morocco (n. 24), 25–6. 32 Ibid., 26. The ICJ relied on the same ‘provisional conclusion’ test in Interhandel (Switzerland v United States of America), Preliminary Objections, [1959] ICJ Rep. 6, 24-25. Arangio-Ruiz takes the position that this test has not been applied rigorously. Gaetano Arangio-Ruiz, ‘The Plea of Domestic Jurisdiction before the International Court of Justice: Substance or Procedure?’, in Vaughan Lowe and Malgosia Fitzmaurice (eds.), Fifty Years of the International Court of Justice (Cambridge: Cambridge University Press, 1996), 440–458. 33 Exchange of Greek and Turkish Populations (Lausanne Convention VI, January 30th, 1923, Article 2), Advisory Opinion, PCIJ Series B, No. 10, 17.

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State Jurisdiction in the ICJ and the PCIJ 465 The interpretation of the terms of a treaty for this purpose [i.e. for the purpose of determining whether the Court had jurisdiction to render an advisory opinion] could not be considered as a question essentially within the domestic jurisdiction of a State. It is a question of international law which, by its very nature, lies within the competence of the Court.34

It does not seem reconcilable with the boundary between domestic and international jurisdiction, much less with the general movement towards broadening international legal regulation, to find that matters of treaty interpretation could fall within the reserved domestic jurisdiction of a state. The plea of domestic jurisdiction is a more complicated procedural matter and lies at the intersection of the state’s regulatory authority and the power of an international court or tribunal to adjudicate. The essential point is that in general a plea of domestic jurisdiction does not affect the jurisdiction of an international court or tribunal, or even the admissibility of claims, but rather amounts to a defence on the merits that the defendant may raise at the appropriate stage in the proceedings. This is because the plea concerns the substance of international obligations, and it does not affect jurisdiction or admissibility. The only circumstance where it might do so is where the constitutive instrument in which a party or parties to proceedings has or have accepted the jurisdiction of an international court or tribunal—such as a treaty of arbitration, a compromissory clause in a treaty or a declaration under Article 36 of the Statute—unequivocally excludes matters within domestic jurisdiction from the jurisdiction of the international court or tribunal. Even then, however, it might be appropriate to join the plea to the merits instead of allowing it to defeat jurisdiction or admissibility as a preliminary objection. Allowing the objection in limine litis may generate procedural unfairness or even defeat the purpose of the international court or tribunal’s very existence. Notice the intersection between the various meanings of the term ‘jurisdiction’ in such a case. Other decisions by the PCIJ corroborate this position. In Losinger & Co. (Switzerland v Yugoslavia), the PCIJ ordered, in response to a preliminary objection based on a plea of domestic jurisdiction, that the objection to jurisdiction should be joined to the merits of the case. The Court held that it ‘might be in danger, were it to adjudicate now upon the plea to the jurisdiction, of passing upon questions which appertain to the merits of the case, or of prejudging their solution’.35 The Court further held that it ‘cannot enter in any way on the merits of a case that has been submitted to it by Application under Article 36(2) of the Statute, before the Parties have had an opportunity of exercising the right conferred upon them by the Statute and the Rules of the Court of each submitting two written pleadings, and of making oral statements on the merits of the dispute’.36 The Court appears to have taken the position that the plea of domestic jurisdiction is essentially a defence on the merits, rather than an objection to jurisdiction.37 34 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion of 30 March 1950, [1950] ICJ Rep. 65, 70–1. 35 Losinger & Co. (Switzerland v Yugoslavia), Preliminary Objection, Order, PCIJ Series A/B No. 67, 23. 36 Ibid. 37 Waldock (n. 22), 117.

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466 Daniel Costelloe In Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria), the PCIJ in its judgment on preliminary objection of 4 April 1939 also rejected the suggestion that the plea of domestic jurisdiction could amount to a preliminary objection to the Court’s jurisdiction. It held, instead, that the argument formed part of the merits of the dispute. The Court stated that it ‘cannot therefore regard this plea as possessing the character of a preliminary objection within the meaning of Article 62 of the Rules’.38 The Court reiterated the substance of that finding, in relation to a different but related preliminary objection, at a subsequent passage in the judgment.39 Interestingly, and somewhat unrelatedly, the Court made this order at a time when the principles of territoriality and nationality were sharply pronounced, sometimes violently so. Thus, for example, in its order of 5 December 1939 on the request for the indication of interim measures of protection in the same dispute between Belgium and Bulgaria, the Court referred to the fact that, ‘owing to the war, the Agent for the Bulgarian Government found it impossible to collaborate with foreign Counsel in the preparation of the Bulgarian defence, that, owing to the necessity of traversing belligerent countries to reach The Hague, which involved serious risks to personal safety, the Bulgarian Government forbade the departure of the national judge nominated by it and of its agent’.40 This serves as a poignant historical reminder of some of the excesses of state authority. The position the PCIJ took with respect to the character of the plea of domestic jurisdiction in Losinger and Electricity Company of Sofia and Bulgaria is plausible. There is otherwise a serious risk of prejudging the merits before the case has been pleaded. At least one of the parties could be deprived of the opportunity to present its case, thereby upsetting procedural fairness, if the court treated such a plea as a preliminary objection to jurisdiction in limine litis rather than joining the objection to the merits. Nationality Decrees, Losinger, and Electricity Company of Sofia together make it clear that even a prima facie arguable question of international obligation suffices to bring a matter within international jurisdiction, and that in any case the plea of domestic jurisdiction does not, by itself, possess the character of a preliminary objection but rather of a defence on the merits. The ICJ confirmed this approach in Right of Passage over Indian Territory, in which the Court did not treat an objection by India based on a domestic jurisdiction reservation in its Article 36(2) declaration accepting the Court’s jurisdiction under Article 36(2) of the Statute as a preliminary objection to the admissibility of Portugal’s claim. The Court found that it could not pronounce upon that preliminary objection without prejudging the merits and decided, therefore, to join it to the merits.41

38 Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria), Preliminary Objection, (1939) PCIJ Series A/B, No. 77, 78. 39 See ibid., 82–3. 40 Electricity Company of Sofia and Bulgaria, Order of 5 December 1939 (Request for the Indication of Interim Measures of Protection), PCIJ Series A/B, No. 79, 197. 41 Right of Passage over Indian Territory (Portugal v India), Preliminary Objections, [1957] ICJ Rep. 125, 150.

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State Jurisdiction in the ICJ and the PCIJ 467 These trends together point towards a policy that, on balance, favours bringing matters within international jurisdiction rather than keeping them within domestic jurisdiction. Nationality Decrees has been applauded as a vindication of international jurisdiction over the resistance of national jurisdiction.42 Brierly noted frankly in 1924 that ‘[t]he problem which seems to demand the consideration of international lawyers is not the existence of a sphere of international relations into which the law may not enter, but its extent; for unfortunately the great majority of the differences for the same of which States are prepared to resort to war fall within the “reserved domain” ’.43 He concluded that the establishment of a real rule of law between states, and making of international law more than a mere means for settling minor international disputes or facilitating international business, required ‘the progressive diminution of the extent of this “reserved domain,” and the annexation of part of it at any rate to the domain of law’.44 Waldock also expressed the position plainly: ‘In general, it seems that the doctrine of the reserved domain, as a limit upon the jurisdiction of legal tribunals, is both artificial and destructive of the avowed object of the acceptance of their jurisdiction. For it confuses jurisdiction with substantive rights and obligations. It tends to give an air of respectability to what is nothing more than a refusal to allow international obligations to be judicially enforced by a spurious appeal to a constitutional doctrine.’45 An appeal to a putative reserved domain should in principle not be allowed to defeat international jurisdiction in limine litis. The defendant invoking the reserved domain could in principle always still attempt to defeat the claim, on the basis of this defence, at the merits stage in the proceedings. The Court’s articulation of the ‘reserved domain’ also raises questions about the legal implications, if any, of Article 2(7) of the Charter of the United Nations for the ICJ’s jurisdiction. Under that provision, ‘[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter’. That provision does, however, in line with 42 See e.g. Barcelona Traction, Light and Power Co. Ltd (Belgium v Spain), Second Phase, [1970] ICJ Rep. 3, 313 (Judge Ammoun, sep. op.); Stephen M. Schwebel, ‘The Roles of the Security Council and the International Court of Justice in the Application of International Humanitarian Law’, New York University Journal of International Law and Policy 27 (1995): 731, 748. But see Nathaniel Berman, ‘The Nationality Decrees Case, or, Of Intimacy and Consent’, Leiden Journal of International Law 13 (2000): 265, who cautions that the decision must be read in its context of colonialism. 43 J. L. Brierly, ‘The Shortcomings of International Law’, British Yearbook of International Law 5 (1924): 4, 7. 44 Ibid. 45 Waldock (n. 22), 142. Recall, in this connection, Art. 27 of the Vienna Convention on the Law of Treaties, concerning internal law and the observance of treaties, and Art. 32 of the Articles on Responsibility of States for Internationally Wrongful Acts, concerning the irrelevance of internal law. Those provisions, however, concern a state’s compliance with an international legal obligation, rather than the jurisdiction of an international court or tribunal to adjudicate a claim concerning such compliance.

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468 Daniel Costelloe the collective security system that the Charter establishes, contain a carve-out for enforcement measures under Chapter VII of the Charter.46 The Court has never had the opportunity to decide this question. It came close to doing so, however, in Anglo-Iranian Oil Co. (United Kingdom v Iran). In those proceedings, Iran made a preliminary objection to the Court’s jurisdiction on the basis of Articles 2(7), 7(1), and 92 of the Charter,47 arguing that the Court was an organ of the United Nations and therefore not authorized to intervene in Iran’s domestic affairs, because the case raised matters essentially within Iran’s domestic jurisdiction. The Court declined jurisdiction on the basis of one of Iran’s other preliminary objections, and it did not address the defendant’s argument based on Article 2(7). Nevertheless, a preliminary objection based on Article 2(7) enjoys little if any support in the text of the Charter and in principle and should not be entertained.48 Nowadays, arguments that resemble the plea of domestic jurisdiction or are based on a notion similar to the reserved domain appear in different guises. Two examples that come to mind are the margin of appreciation that parties to the European Convention on Human Rights enjoy, according to the jurisprudence of the European Court of Human Rights, in the implementation of certain Convention obligations,49 and the idea of ‘regulatory space’ that has been recognized in international investment disputes.50 These notions, however, concern the implementation of international legal obligations or the extent of international legal obligations (i.e. their content and substance), and are different from the idea of a plea of domestic jurisdiction as a preliminary objection. * * * Two years after the PCIJ’s advisory opinion in Nationality Decrees, the PCIJ handed down its judgment in what is perhaps the most famous of international decisions, the case concerning the SS Lotus (the Lotus case).51 It is a decision of great theoretical significance,52 yet it offers a statement of principle arguably more limited in reach than some have over the years assumed. As in Nationality Decrees, the PCIJ’s decision in the 46 Art. 2(7) reads: ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.’ 47 Art. 7(1) includes the ICJ among the ‘principal organs of the United Nations’. Art. 92 provides that the Court’s Statute forms an integral part of the Charter. 48 Waldock (n. 22), 122–4. 49 See e.g. Handyside v United Kingdom, App. No. 5493/72, ECtHR, Judgment of 7 December 1976. 50 See e.g. Thunderbird Gaming Corp. v United Mexican States, UNCITRAL, Award of 26 January 2006, para. 127. 51 SS Lotus (France v Turkey) [1927] PCIJ Series A, No. 10. 52 Sir Eric Beckett observed in the British Yearbook at a time when the case was still pending that it was ‘perhaps the first case which has come before the Court in which the question for decision is a point of general international law’. W. E. Beckett, ‘Criminal Jurisdiction over Foreigners: The Franconia and the Lotus’, British Yearbook of International Law (1927): 108, 109.

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State Jurisdiction in the ICJ and the PCIJ 469 Lotus case illustrates that the limits on a state’s jurisdiction imposed by the presence of other states is the same as the limits imposed by international law. The decision calls for careful consideration.

V. The Limits on One State’s Regulatory Authority as a Consequence of Other States’ Regulatory Authority: the Lotus Case Like all litigation, and international litigation between states in particular, the Lotus case took place in a historical and political context. In 1927, when the PCIJ handed down its judgment in the case—a close decision decided by the president’s casting vote—a mere three years had passed since the entry into force of the Treaty of Lausanne. That peace settlement, which in fact consisted of six separate treaties along with several declarations and protocols, was significant for the birth of the modern state of Turkey out of the Ottoman Empire, since it established peace and official relations between the Allied Powers and Turkey. Article 28 of the Treaty of Peace put a definitive end to capitulatory rights. That article provided: ‘Each of the High Contracting Parties hereby accepts, in so far as it is concerned, the complete abolition of the Capitulations in Turkey in every respect.’ Capitulations described concessions, which trading powers including the Republic of Genoa, the Republic of Venice, and France had over the centuries acquired through bilateral treaties with the Ottoman Empire, under which these powers enjoyed the right to exercise criminal and civil jurisdiction over their nationals in the Ottoman Empire. These Capitulations represented a continuation of similar rights that the Byzantine Empire had granted to trading powers.53 As a consequence of these rights, such nationals were not subject to the jurisdiction of the Ottoman Empire.54 Their inconsistency with the notion of a modern, territorially sovereign state requires no elaboration. The importance of abolishing such historical rights, a form of foreign subjugation, to modern Turkey can scarcely be exaggerated. There appears to be no evidence that this circumstance played a role in the decision by the criminal court in Constantinople to 53 For overview, see Lucius Ellsworth Thayer, ‘The Capitulations of the Ottoman Empire and the Question of their Abrogation as It Affects the United States’, American Journal of International Law 17 (1923): 207. 54 See also Art. 27 of the Treaty of Peace, which provides: ‘No power or jurisdiction in political, legislative or administrative matters shall be exercised outside Turkish territory by the Turkish Government or authorities, for any reason whatsoever, over the nationals of a territory placed under the sovereignty or protectorate of the other Powers signatory of the present Treaty, or over the nationals of a territory detached from Turkey.’

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470 Daniel Costelloe exercise jurisdiction over Lieutenant Demons of the SS Lotus of the Messageries Maritimes after its collision with the Turkish steamer Boz-Kourt in international waters off Cape Negri, but it is a historical circumstance to which one must have regard.55 Judge Weiss of the PCIJ referred to the abolishment of ‘Capitulations which from the days of Francis I and until the conclusion of this Treaty had governed the legal and judicial relations between the Ottoman Empire and Christendom’. He further noted that ‘[t]he new Turkey therefore finds herself freed from the hampering servitudes which for so long had placed her in a situation apart, in an inferior position amongst the nations; she now becomes their equal, having like them no other sovereign than international law’.56 The exercise by Turkey of criminal jurisdiction over Lieutenant Demons may therefore have had a particularly symbolic significance at this time. The Court held that Turkey had jurisdiction under Article 6 of Turkey’s Criminal Code, which itself incorporated a principle of jurisdiction based on passive personality, to try Lieutenant Demons—the officer of the watch aboard the SS Lotus—with involuntary manslaughter upon his arrival in Constantinople after the collision of the Lotus with the Boz-Kourt, which had resulted in the sinking of the latter and the death of Turkish nationals aboard that steamer.57 The judgment has ever since served as the most celebrated and maligned reference point for the extent of a state’s territorial jurisdiction under international law. The Lotus case was one that concerned the exercise of criminal jurisdiction, albeit in peculiar circumstances. The essentially territorial character of a state’s criminal jurisdiction ought therefore not to be overlooked. In the first paragraph of the dispositif, the Court held that ‘by instituting criminal proceedings in pursuance of Turkish law against Lieutenant Demons, officer of the watch on board the Lotus at the time of the collision, [Turkey] has not acted in conflict with the principles of international law, contrary to Article 15 of the Convention of Lausanne of July 24th, 1923, respecting conditions of 55 As Judge Moore pointed out in his dissenting opinion, neither of the parties offered a copy of the Turkish court’s decision or decisions. The parties also offered no copies of the proceedings, including the evidence, on which the Turkish court had based its decision or decisions. See the Lotus case (n. 51), 65 (Judge Moore, diss.). 56 Ibid., 40 (Judge Weiss, diss.). 57 Article 6 of Turkey’s Criminal Code provided in relevant part: ‘Quand un étranger commet contre un Turc en pays étranger un acte susceptible d’entraîner pour son auteur, d’après les dispositions du Code penal turc, un emprisonnement de plus d’une année, cet étranger sera jugé par les tribunaux et conformément aux lois pénales de Turquie, s’il est trouvé sur le territoire turc.’ Judge Moore in fact dissented on the basis that, to the extent Art. 6 permitted the prosecution and punishment of foreigners for acts committed in foreign states against Turkish nationals if they later found themselves in Turkish territory— i.e. a passive personality head of jurisdiction—it was contrary to international law. He concluded that, to the extent Turkey’s prosecution of Lieutenant Demons was based on Article 6 of Turkey’s Criminal Code it was in conflict with principles of international law. The Lotus case (n. 51), 91, 94 (Judge Moore, diss.). For additional facts, see further ‘Summary of Events for the Year 1926’, British Yearbook of International Law 8 (1927): 232, 238; ‘Decisions, Opinions, and Awards of International Tribunals, 1927’, British Yearbook of International Law 9 (1928): 135, 139–44; W. E. Beckett, ‘Decisions of the Permanent Court of International Justice on Points of Law and Procedure of General Application’, British Yearbook of International Law 11 (1930): 1, 9–10.

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State Jurisdiction in the ICJ and the PCIJ 471 residence and business and jurisdiction’.58 At the conclusion of the reasoned part of its judgment, the court reached the following overall position: It must therefore be held [having rejected France’s individual arguments] that there is no principle of international law, within the meaning of Article 15 of the Convention of Lausanne of July 24th, 1923, which precludes the institution of the criminal proceedings under consideration. Consequently, Turkey, by instituting, in virtue of the discretion which international law leaves to every sovereign State, the criminal proceedings in question, has not, in the absence of such principles, acted in a manner contrary to the principles of international law within the meaning of the special agreement.59

Earlier in the judgment, the Court had taken a position on a question that it rightly characterized as a ‘question of principle’ that was ‘fundamental’.60 The Court articulated its position in a passage so famous that, for better or for worse, it must be quoted in full: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed. Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.61 58 Art. 15 of the Convention Respecting Conditions of Residence and Business and Jurisdiction of 24 July 1923 provides: ‘Subject to the provisions of Article 16, all questions of jurisdiction shall, as between Turkey and the other Contracting Powers, be decided in accordance with the principles of international law.’ 59 The Lotus case (n. 51), 31. 60 Ibid., 18. 61 Ibid., 18–19.

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472 Daniel Costelloe An extraordinary amount of academic energy has been expended on this passage. It concerns a matter of principle, and is certainly fundamental, but as far as its relevance to the case was concerned it should not be exaggerated. To begin with, the passage must be read in relation to the facts of the case and to the question submitted to the Court by the Special Agreement for adjudication. Moreover, the passage was not necessary to the Court’s reasoning.62 Few have examined the significance of the compromis to the Court’s decision. The Special Agreement between Turkey and France, signed on 12 October 1926 in Geneva, requested that the Court answer the question whether Turkey had, ‘contrary to Article 15 of the Convention of Lausanne of July 24th, 1923, respecting conditions of residence and business and jurisdiction, acted in conflict with the principles of international law—and if so, what principles—by instituting . . . joint criminal proceedings in pursuance of Turkish law against M. Demons . . . ?’63 France, as the party asserting Turkey’s wrongdoing, bore the legal burden of establishing that Turkey’s acted ‘in conflict’ with Article 15 of the Convention of 24 July 1923. Article 15 referred to ‘principles of international law’, but the Special Agreement goes further by asking ‘what principles’ had been breached in the event Turkey had breached Article 15. The identification of specific p rinciples of international law for the purposes of applying the words ‘principles of international law’ in Article 15 thus lay within the scope of the Special Agreement, though arguably only of such principles that had been breached rather than of those, as here, that had not been breached. Recalling this passage of the Special Agreement makes the judgment look less dramatic and provocative than saying flatly that everything not specifically prohibited is permitted. By asking whether Turkey had acted ‘contrary’ to Article 15 of the Convention of Lausanne, the starting position is an assumption of compliance with the law. Notice, however, that Article 15 of the Convention of Lausanne required that questions of jurisdiction between Turkey and the other contracting powers be decided ‘in accordance’ with the principles of international law.64 Lord Finlay captured this difficulty in his dissenting opinion: 62 Mann (n. 2), 33–5. The author writes (at 35): ‘These sentences seem to propagate the idea of the delimitation of jurisdiction by the State itself rather than international law or, in the words of Sir Hersch Lauterpacht, they proclaim the principle of presumptive freedom of State action, and may, therefore, have to be read as countenancing a most unfortunate and retrograde theory. It can be confidently asserted that they have been condemned by the majority of the immense number of writers who have discussed them, and today they probably cannot claim to be good law. It is also true, as has often been pointed out, that they have only the status of an obiter dictum which should not “mesmerize” even the most conservative adherent to the precept of stare decisis.’ See further Photini Pazartzis, ‘Judicial Activism and Judicial Self-Restraint: The PCIJ’s Lotus Case’, in Christian J. Tams and Malgosia Fitzmaurice (eds.), Legacies of the Permanent Court of International Justice (Leiden: Martinus Nijhoff, 2013), 324–327. 63 The Lotus case, PCIJ Series C, No. 13/2 (Speeches Made and Documents Read before the Court), Special Agreement for Arbitration (12 October 1926), 25. Sir Gerald Fitzmaurice also cautions, on the basis of the wording of the compromis, against reading the Lotus dictum as supporting an abstract and independent rule of law. Fitzmaurice (n. 10), I, 146–147. 64 See Maurice Travers, ‘L’Affaire du Lotus’, Revue de droit international & de législation comparée 9 (3rd ser) (1928): 400, 402–3.

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State Jurisdiction in the ICJ and the PCIJ 473 It has been argued for Turkey that this question implies that France, in order to succeed, must point to some definite rule of international law forbidding what Turkey did. I am unable to read the compromis in this sense. What it asks is simply whether the Turkish Courts had jurisdiction to try and punish Demons; if international law authorizes this, the question would be answered in the affirmative, otherwise in the negative. The compromis cannot, with any fairness, be read so as to require France to produce some definite rule forbidding what was done by Turkey. If the Turkish proceedings were not authorized by international law, Turkey acted en contradiction des principes du droit international . . . The question is whether the principles of international law authorize what Turkey did in this matter.65

The reason why the passage was not necessary lies in the fact that the Court was able to support its conclusion by reference to the objective territoriality principle of jurisdiction,66 thereby acknowledging and paying tribute to the essentially territorial character of the criminal law. Irrespective of how one characterizes or labels the principle of territorial or quasi-territorial jurisdiction, by reference to which the Court reached its conclusion that Turkey was entitled, in accordance with principles of international law, to exercise criminal jurisdiction over Lieutenant Demons, there was no need, even under the Special Agreement, to start at the outset with the broad statement quoted above. Turkey did not dispute that the flag state of Lieutenant Demons’s vessel, France, had jurisdiction in its capacity as the flag state to try the vessel’s officer of the watch criminally for negligence and manslaughter. The question was whether that jurisdiction was exclusive in circumstances where the collision occurred on the high seas.67 Vessels are assimilated to extensions of the flag state’s territory.68 While the jurisdiction of the flag state was well-established, its exclusivity was not.69 In manslaughter cases, the application of the objective territorial principle is plausible, since the wrong is localized by reference to its effects. If the subjective element were determinative for the localization of the offence, the territorial jurisdiction of the state, and its compliance with principles of international law, would depend on an individual’s state of mind rather than on the effects of the actus reus, which would generate great evidentiary difficulties.70 65 The Lotus case (n. 51), 52 (Lord Finlay, diss.). 66 Jennings (n. 5), 159–0; Akehurst (n. 5), 155; J. E. S. Fawcett, ‘The Eichmann Case’, British Yearbook of International Law 38 (1962): 181, 187; Hersch Lauterpacht, International Law: The Collected Papers of Hersch Lauterpacht, III: The Law of Peace (Cambridge University Press, 1977), 238–9. 67 This part of the judgment is also of interest for the question concerning evidence of customary international law. See H. C. M. Charlesworth, ‘Customary International Law and the Nicaragua Case’, Australian Yearbook of International Law 11 (1984–7): 1, 8–9. 68 See also UNCLOS (n. 6), Arts. 27–8. But see the Lotus case (n. 51), 53 (Lord Finlay, diss.). 69 James Crawford (ed.), Brownlie’s Principles of Public International Law, 8th edn (Oxford University Press, 2012). But see the Lotus case (n. 51), 97 (Judge Altamira, diss.) 70 On this point, see the Lotus case (n. 51), 82 (Judge Moore, diss.). Cf. at 37 (Judge Loder, diss.) and 60, 64 (Judge Nyholm, diss.). Individual judges considered the judgment of the Court of Crown Cases Reserved in R v Keyn (The Franconia), yet there were fundamental differences between that case and the Lotus case. The most important of those was that the criminal offence in the Franconia had been committed within three miles of the coastline, i.e. within British territorial waters. R v Keyn (The Franconia) (1876) 2 Ex D 63. For discussion, see Beckett (n. 52), 112–28.

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474 Daniel Costelloe Finally, the passage above must be read in the context of the Court’s subsequent r easoning, which is limited to a case concerning the collision on the high seas of two civilian vessels flagged in different states, and the ensuing prosecution for the crime of manslaughter under Article 6 of Turkey’s Criminal Code. The Court did not articulate the passage above, which has become known as the ‘Lotus dictum’, in the abstract, but rather in the particular circumstances of this case. All these circumstances together indicate that the passage above ought today not to be regarded as a general pronouncement upon the extent of a state’s territorial jurisdiction, the character of state jurisdiction generally, the permissibility of state conduct in accordance with international law, or the requirement of a prohibitive rule of international law to render conduct unlawful. Judge Nyholm observed in his dissenting opinion, which did not endorse the objective territoriality principle as forming a basis for Turkey’s exercise of jurisdiction, but rather regarded territoriality as supporting the exclusive jurisdiction of France: ‘[N]ot only is it in most cases inadmissible thus to deduce permission from the absence of a prohibition, but furthermore in the present case one is confronted with the territorial principle, which is definitely established, whilst the possible exceptions to it—and in particular the exception which would be required to give Turkey criminal jurisdiction in this case—are not.’71 Still, the judgment is indicative of a time which was less wedded to multilateral principles in international cooperation. Or, in the words of Judges Higgins, Kooijmans, and Buergenthal in the Arrest Warrant case, it may have reflected ‘the high water mark of laissez-faire in international relations, and an era that has been significantly overtaken by other tendencies’.72 The ‘Lotus dictum’ was put to the test, or so it seemed in the eyes of certain judges who wrote declarations or separate or dissenting opinions, in the Court’s 1996 advisory opinion concerning the Legality of the Threat or Use of Nuclear Weapons.73 General Assembly Resolution 49/75 K, adopted on 15 December 1994, requested an advisory opinion by the Court on the following question: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?’ The Court in paragraph 2(E) of the dispositif found, by the president’s casting vote: [T]he threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.

71 The Lotus case (n. 51), 63 (Judge Nyholm, diss.). 72 Arrest Warrant (Democratic Republic of the Congo v Belgium), [2002] ICJ Rep. 3, 78 (Judges Higgins, Kooijmans, and Buergenthal, sep. op., para. 51). 73 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep. 225.

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State Jurisdiction in the ICJ and the PCIJ 475 The circumstances of the Court’s conclusion in paragraph 2(E) of the dispositif were different from those in which the PCIJ delivered its now famous dictum in the Lotus case concerning prohibitory and permissive rules in relation to the exercise of criminal jurisdiction on a state’s territory. Recall that the presence or absence of restrictions on the exercise of territorial jurisdiction is not the same thing as the permissibility or impermissibility of any conduct tout court. Legality of the Threat or Use of Nuclear Weapons concerned the permissibility under international law of the threat or use of nuclear weapons. The Lotus case concerned the question whether Turkey’s exercise of criminal jurisdiction on its territory, albeit in relation to events on the high seas, was or was not in accordance with principles of international law within the meaning of Convention Respecting Conditions of Residence and Business and Jurisdiction of 24 July 1923. The Legality of the Threat or Use of Nuclear Weapons advisory opinion was not, as a consequence, directly concerned with the extent of state jurisdiction to legislate and to enforce laws on its territory. At paragraph 52 of its judgment, the Court stated that ‘international customary law and treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self-defence. Nor, however, is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization.’74 At paragraph 97 of its opinion, the Court stated that ‘in view of the present state of international law viewed as a whole . . . and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake’. Taking this position is different from saying that conduct not specifically prohibited is permitted. So likely, however, was this finding in the dispositif to generate heated reactions, and so close was the vote, that the president of the Court at the time, Mohammed Bedjaoui, saw it fit to append a declaration explaining the Court’s position in regard, among other things, to paragraph 2(E) of the dispositif. In this declaration, President Bedjaoui explained that ‘[t]his very important question of nuclear weapons proved alas to be an area in which the Court had to acknowledge that there is no immediate and clear answer to the question put to it’.75 He further explained: The Court’s decision in the ‘Lotus’ case, which some people will inevitably resurrect, should be understood to be of very limited application in the particular context of the question which is the subject of this Advisory Opinion. It would be to exaggerate the importance of that decision of the Permanent Court and to distort its scope were it to be divorced from the particular context, both judicial and temporal, in which it was taken. No doubt this decision expressed the spirit of the times, the spirit 74 Ibid., 247 (para. 52). The Court’s opinion only referred to the Lotus case in connection with states’ submissions. Ibid., 238–239 (para. 21). 75 Ibid., 269 (President Bedjaoui declaration, para. 8).

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476 Daniel Costelloe of an international society which as yet had few institutions and was governed by an international law of strict co-existence, itself a reflection of the vigour of the principle of State sovereignty.76

President Bedjaoui proceeded to push this reasoning to its natural conclusion: ‘In the present Opinion . . . the Court does not find the threat or use of nuclear weapons to be either legal or illegal . . . Thus the Court, in this Opinion, is far more circumspect than its predecessor in the “Lotus” case in asserting today what is not expressly prohibited by international law is not therefore authorized.’77 Certain judges adopted far more sceptical positions in their dissenting opinions. Judge Shahabuddeen, for example, stated in his dissent that ‘the mere absence of a prohibition is not enough’ and that ‘[i]n the case of nuclear weapons, there is no authorization, whether specific or otherwise’.78 He saw no room for a non liquet, even in advisory proceedings.79 More pertinently, he stated that ‘[t]he notions of sovereignty and independence which the “Lotus” Court had in mind did not evolve in a context which visualized the possibility that a single State could possess the capability of wiping out the practical existence both of itself and of all other States’.80 Judge Weeramantry stated in his dissenting opinion that ‘[i]t would have been furthest from the mind of the Court deciding that case that its dictum, given in such entirely different circumstances, would be used in an attempt to negative all that the humanitarian laws of war had built up until that time’.81 He added that the Lotus case had been decided in peacetime, at a time when the legal distinction between the laws of peace and the laws of war was well recognized. In these circumstances, ‘[i]t would be an interpretation totally out of context that the “Lotus” decision formulated a theory, equally applicable in peace and war, to the effect that a State could do whatever it pleased so long as it had not bound itself to the contrary’.82 President Bedjaoui’s declaration is sensitive to the particular setting in which the PCIJ had rendered its judgment. Again, the PCIJ had made its famous dictum in the context of a state’s exercise of criminal jurisdiction on its territory, noting that restrictions upon the exercise by a state of adjudicative jurisdiction on its own territory could not be presumed, in contrast to the exercise by a state of jurisdiction on the territory of a different state, which required a permissive rule. That is utterly different from saying that, in circumstances where the ICJ was unable to conclude—unsatisfactorily, granted—on the basis of international legal authorities and submissions whether the use of nuclear weapons was ever permissible, the presumptive answer in the absence of a prohibition must be in the affirmative. 76 Ibid., 270 (President Bedjaoui declaration, para. 12) (emphasis in original). 77 Ibid., 270 (President Bedjaoui declaration, paras. 14–15). 78 Ibid., 377 (Judge Shahabuddeen, diss.). For discussion of this point, see Marcelo G. Kohen, ‘L’avis consultatif de la CIJ sur la Licéité de la menace ou de l’emploi d’armes nucléaires et la fonction judiciaire’, European Journal of International Law 8 (1997): 336, 344–346. See further Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, [2010] ICJ Rep. 403, 478 (Judge Simma, decl.). 79 Legality of the Threat or Use of Nuclear Weapons (n. 73), 390 (Judge Shahabuddeen, diss.). 80 Ibid., 395 (Judge Shahabuddeen, diss.). 81 Ibid., 495 (Judge Weeramantry, diss.). 82 Ibid.

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State Jurisdiction in the ICJ and the PCIJ 477

VI. Specific Restrictions on a State’s Regulatory Authority Certain restrictions on the regulatory authority of the state find their basis not only in first principles but also in particular rules. In the ICJ’s jurisprudence, this has become most evident in the context of state immunity, though the jurisdictional principles have not always been fully articulated in the judgments. The Court’s 2001 judgment in the Arrest Warrant case primarily concerned the personal inviolability of a Minister of Foreign Affairs and his or her immunity from foreign criminal jurisdiction.83 It is an accepted principle that rules concerning state immunity, including the immunity of officials, operate as a bar to the exercise of jurisdiction. The ICJ in that judgment, however, did not directly address the issue concerning the jurisdiction of Belgium’s national courts. This was because, in its submissions in its Memorial and in its oral submissions at the closing of the oral hearings, the Congo had invoked only Belgium’s alleged violation of the immunities of Congo’s then-Minister of Foreign Affairs, and no longer had invoked Belgium’s claim to exercise universal jurisdiction, which the Congo had relied on in its Application.84 In these circumstances, the Court concluded that the ne ultra petita principle prevented it from ruling, ‘in the operative part of its Judgment, on the question whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of national courts.’85 Nonetheless, the Court recognized, as a matter of principle, that it should logically only address the ground concerning immunities once it had made a determination in respect of the first ground, concerning universal jurisdiction. This was because only where a state had jurisdiction under international law could any question concerning immunities arise in relation to the exercise of such jurisdiction.86 As the president of the Court, Gilbert Guillaume, observed in his separate opinion: That would have been a logical approach; a court’s jurisdiction is a question which it must decide before considering the immunity of those before it. In other words, there can only be immunity from jurisdiction where there is jurisdiction. Moreover, this is an important and controversial issue, clarification of which would have been in the interest of all States, including Belgium in particular.87 83 Arrest Warrant (Democratic Republic of the Congo v Belgium) (n. 72). 84 Ibid., 18–19 (paras. 43, 45–6). 85 Ibid., 19 (para. 43). 86 Ibid., 19 (para. 46). The Court proceeded to note that, in view of the final form of the Congo’s submissions, it would address the issue concerning immunities assuming that Belgium had jurisdiction under international law to issue and circulate the arrest warrant in question. 87 Ibid., 35 (President Guillaume, sep. op.). See also Antonio Cassese, ‘When May Senior State Officials Be Tried for International Crimes? Some Comments on the Congo v Belgium Case’, European Journal of International Law 13 (2002): 853, 855.

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478 Daniel Costelloe The joint separate opinion by Judges Higgins, Kooijmans, and Buergenthal rejected the Court’s application of the ne ultra petita principle88 and proceeded to examine the question whether a state was permitted to exercise jurisdiction over a person who had no connection with the forum state and when the accused person was not present on the forum state’s territory.89 They proceeded to examine the vexed question not only of the circumstances, if any, under which a state may exercise universal jurisdiction, but what the term ‘universal jurisdiction’ referred to in the first place.90 The joint separate opinion surveyed a range of domestic legislation and multilateral treaties and concluded that the assertion of jurisdiction under such instruments was in practice a matter of obligation. These judges concluded, in relation to treaties providing that a state that finds a perpetrator of certain offenses on its territory shall prosecute or extradite the offender, that this ‘has come to be referred to as “universal jurisdiction”, though this is really an obligatory territorial jurisdiction over persons, albeit in relation to acts committed elsewhere’.91 They concluded, by contrast, that it is undeniable ‘[t]hat there is no established practice in which States exercise universal jurisdiction, properly so called’.92 Judge ad hoc Van den Wyngaert in her dissenting opinion also explored the principles of universal jurisdiction, with specific reference to the Lotus principle. According to her dissent, ‘[i]t follows from the “Lotus” case that a State has the right to provide extraterritorial jurisdiction on its territory unless there is a prohibition under international law. I believe there is no prohibition under international law to enact legislation allowing it to investigate and prosecute war crimes and crimes against humanity abroad.’93 She concluded that no treaty-based or customary rule of international law existed to the effect that a state was only permitted to exercise jurisdiction over war crimes or crimes against humanity if the defendant was present on the prosecuting state’s territory,94 and that international law permitted the exercise of universal jurisdiction for war crimes and crimes against humanity. Consequently, Article 7 of Belgium’s 1993/1999 Act, at issue in those proceedings and which provided for universal jurisdiction over war crimes and crimes against humanity, was not, in her view, contrary to international law.95 The meaning and permissible exercise of universal jurisdiction— which remains one of the more difficult instances of state jurisdiction—remain to be clarified in the court’s jurisprudence. In civil proceedings in one state’s courts against a foreign state, the ICJ’s position is, by contrast, clear. Here, the limits to one state’s adjudicative jurisdiction take the form of another state’s immunity from foreign jurisdiction. These limits are a corollary of one of the axioms of international law: the coexistence of equally sovereign states as governed by law and the principle that one such sovereign state may not sit in judgment over the 88 Arrest Warrant (n. 72), 66–8 (Judges Higgins, Kooijmans, and Buergenthal, sep. op., paras. 11–18). 89 Ibid., 68 (Judges Higgins, Kooijmans, and Buergenthal, sep. op., para. 19). 90 For a discussion of the concept of universal jurisdiction, see O’Keefe (n. 10). See further Ryngaert (n. 3), 120–142; Rosalyn Higgins, ‘General Course on Public International Law’, Recueil des Cours 230 (1991-V): 9, 90–100. 91 Ibid., 75 (Judges Higgins, Kooijmans, and Buergenthal, sep. op., para. 41). 92 Ibid., 76 (Judges Higgins, Kooijmans, and Buergenthal, sep. op., para. 45). 93 Arrest Warrant (n. 72), 169 (Judge ad hoc Van den Wyngaert, diss., para. 51). 94 Ibid., 173 (para. 58). 95 Ibid., 176 (para. 67)

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State Jurisdiction in the ICJ and the PCIJ 479 sovereign actions of another.96 In Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) the Court recalled in this respect: The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.97

In this instance, international law operates to impose a specific rule that prevents the exercise of jurisdiction in the form of adjudication in civil proceedings. In Jurisdictional Immunities, the Court made it very clear that the rule operated even where an individual claimant alleged a breach on the part of the defendant state of war crimes or crimes against humanity, despite the fact that state immunity from judicial proceedings and from execution in such circumstances rendered it more difficult for the individual to obtain a remedy.98

VII. Conclusions As expected, the understanding and scope of the notion of state jurisdiction has evolved across the PCIJ’s and ICJ’s jurisprudence. This comes as little surprise, given the changes in international relations over the course of the last 100 years. Refinements to the concept of state jurisdiction reflect the increasingly nuanced manners in which states exercise power, and the acknowledgement that the enforcement of certain fundamental legal principles is in the interest of the entire international community. The question to what extent a state may exercise its regulatory authority remains at the heart of international law. Similarly at the heart of international law lies the question whether a matter is one purely of domestic or rather of international jurisdiction. As always, it is difficult to generalize across a disparate body of jurisprudence. A trend does, nevertheless, emerge. The PCIJ’s and ICJ’s jurisprudence is reflective of the age-old stand-off between what can grandiosely be called internationalism and parochialism— all, of course, under the cloak of legal doctrine. Disputes readily give rise to arguable 96 In relation to the immunities and inviolabilities of certain classes of individuals, see Arrest Warrant (n. 72) and Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France), [2008] ICJ Rep. 177, 234–44. 97 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening), [2012] ICJ Rep. 99, 123–4 (para. 57). 98 Ibid., 126–44 (paras. 62–104).

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480 Daniel Costelloe issues of international law—a consequence of the expansion of international legal obligations through the development of multilateral treaties, but also through a paradigmatic shift in principle. The chances of defeating the jurisdiction of an international court or tribunal or of successfully demonstrating that a claim is inadmissible in limine litis on the basis that a matter falls within a state’s domestic jurisdiction are slim. The ICJ’s jurisprudence and individual judges have also distanced themselves from the fundamental assumptions underlying the ‘Lotus dictum’, thus indicating a greater role for international law in limiting the exercise of national criminal jurisdiction. Finally, the Court’s jurisprudence demonstrates the limits to the exercise of criminal and civil jurisdiction posed by rules governing state immunity under international law. Somewhat unusually, however, it is here that the exercise of domestic jurisdiction is seen by some as doing greater justice than complying with the international legal obligations concerning the immunity of foreign states. The jurisdiction of the state is not dwindling, but it has undergone change. Not all areas are fit for international legal regulation, and some have withstood such a development. But the jurisprudence of the PCIJ and ICJ in these matters reflects a state of international relations in which the coexistence of formally equal states on the basis of law is taken seriously, and the premium placed on domestic jurisdiction as a prerogative of sovereignty has, at least in principle, somewhat diminished.

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Chapter 20

Th e Evolv i ng Nat u r e of th e J u r isdiction of th e Secu r it y Cou ncil A Look at Twenty-First-Century Practice Blanca Montejo and Georg Kerschischnig*

I. Introduction

482

II. The Expansion of the Council’s Jurisdiction in Relation to Thematic and Cross-Cutting Items on its Agenda

483

III. The Expansion of the Council’s Jurisdiction in the Area of Sanctions

495

IV. Conclusions

503

II.1. II.2. II.3. II.4. II.5.

Cold War Dynamics: The Early Days of the Organization The First and Only Periodic Meeting of the Council The End of the Cold War and the Resurgence of the Council Cross-Cutting Items Recent Practice

III.1. The Operationalization of UN Sanctions III.2. Expansion of UN Sanctions vis-à-vis Member States III.3. UN Sanctions Expansion vis-à-vis Individuals and Entities

484 487 488 490 493

496 498 501

* The views expressed herein are those of the authors and do not necessarily reflect the views of the UN.

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482 Blanca Montejo and Georg Kerschischnig

I. Introduction Inspired by the Council of the League of Nations and intended to overcome some of its failures, the United Nations Security Council (the Council) was designed in Dumbarton Oaks with a series of features reminiscent of a super executive organ, one that would have characteristics of the executive as well as the legislative and the judiciary.1 It is in the context of its hybrid nature, that this chapter will examine the jurisdiction of the Council as initially conceived and its evolution since the end of the Cold War. As provided for in Article 24 of the Charter of the United Nations (the Charter), the Council was conferred by the rest of the membership the primary responsibility for the maintenance of international peace and security in order to ensure prompt and effective action by the United Nations. Consistent with the fact that the Council would be acting on their behalf, the members of the United Nations agreed to accept and carry out the decisions of the Council. The Council would, on the other hand, act in accordance with the Purposes and Principles of the United Nations. The Council was conceived to be in continuous session, to hold meetings at headquarters and elsewhere, and to hold so-called ‘periodic meetings’ to be attended by members of government or other specially designated representatives.2 The Council was also given the power to act not only in plenary but also through subsidiary organs as necessary for the performance of its functions.3 Finally, the Council itself (and not the General Assembly) would adopt its own rules of procedure, including the method of selecting its president.4 Subsequently the Council adopted a set of Provisional Rules of Procedure that have remained provisional to date.5 The jurisdiction of the Council is, therefore, defined by a rather limited legal framework and, given its primarily political nature, the Council’s jurisdiction or competence has been defined by political rather than legal considerations. Whilst during the Cold War the Council was characterized by the stalemate created by the tensions between the ‘Great Powers’, the post-Cold War period gave rise to a considerable expansion of its jurisdiction. This chapter will examine two prominent areas of expansion of the Council’s jurisdiction, both in terms of subject matter jurisdiction as well as personal jurisdiction. 1 See Leland Goodrich, Edvard Hambro, and Anne Simons, Charter of the United Nations: Commentary and Documents (New York and London: Columbia University Press, 1969), 204; Malcom Shaw, ‘The Security Council and the International Court of Justice: Judicial Drift and Judicial Function’, in Sam Muller (ed.), The International Court of Justice: Its Future Role after Fifty Years (The Hague: Nijhoff, 1997), 219; and Stefan Talmon, ‘The Security Council as World Legislature’, American Journal of International Law 99(1) (1999): 175. 2 Art. 28 of the Charter. See Leland Goodrich, Edvard Hambro, and Anne Simons, Charter of the United Nations: Commentary and Documents (New York and London: Columbia University Press, 1969); Konrad Bühler ‘The Security Council, Procedure, Article 28’, in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (Oxford University Press, 2012); and Jean Pierre Cot, Alain Pellet, and Mathias Forteau, Charte des Nations Unies, Commentaire article par article (Paris: Economica, 2005). 3 Art. 29 of the Charter. 4 Art. 30 of the Charter. 5 The last update of the rules of procedure took place in 1982 (S/96/Rev.7).

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Jurisdiction of the Security Council 483

II. The Expansion of the Council’s Jurisdiction in Relation to Thematic and Cross-Cutting Items on its Agenda For the most part, during the Cold War, the activity of the Council focused on disputes and situations of a country- or region-specific nature.6 Thematic or cross-sectional issues examining root causes of conflict, specific areas of concern, or the tools available to tackle disputes and situations globally were not the main focus of the discussions of the Council until the early 1990s.7 With the end of the Cold War, the political o pportunity for cooperation among the ‘Great Powers’ arose and issues beyond the strictly country- or regionspecific became more prevalent. In the recent past, the Council has devoted approximately 30 per cent of its meetings to thematic items, providing a measure of their importance on the Council’s agenda.8 Indeed, whilst the members of the Council have expressed differing views about the inclusion of these issues on its agenda, back in the 1940s the drafters of the Charter considered it necessary for the Council to hold high-level meetings to tackle issues of mutual concern. The format was envisaged to be twice-a-year meetings (periodic meetings) of the Council with the participation of ministers and heads of governments.9 This format, used during the time of the League of Nations, was ultimately not successful and various alternatives arose instead (such as high-level meetings and summits).10 However, the need to address areas of common concern remained, and new items of a cross-cutting and thematic nature emerged soon after the end of the Cold War.

6 See Colin Warbrick, ‘The Jurisdiction of the Security Council: Original Intention and New World Order(s)’, in Malcom Evans (ed.), Asserting jurisdiction: International and European Legal Perspectives (Oxford: Hart Publishing, 2003), 127. See also Kristen Boon, ‘Coining a New Jurisdiction: The Security Council as Economic Peacekeeper’, Vanderbilt Journal of Transnational Law 41(4) (2008). 7 This notwithstanding, the Council proved resourceful and creative in the means of handling disputes. For further information on the Council’s activity concerning Chapter VI and Chapter VII measures prior to the 1990s, see Chapters X and XI of the Repertoire of the Practice of the Security Council as well as Chapter V concerning the subsidiary organs of the Security Council (UN Doc. (1951) ST/PSCA/1 and all subsequent supplements). 8 See information on meetings on the Highlights of Security Council Practice for 2015 to 2018, http:// www.un.org/en/sc/documents/highlights.shtml. 9 Art. 28(2) of the Charter provides that, ‘The Security Council shall hold periodic meetings at which each of its members may, if it so desires, be represented by a member of the government or by some other specially designated representative’; and Rule 4 of the Provisional Rules of Procedure establishes that, ‘Periodic meetings of the Security Council called for in Article 28 (2) of the Charter shall be held twice a year, at such times as the Security Council may decide.’ 10 For further details, see Konrad Bühler ‘The Security Council, Procedure, Article 28’, in Bruno Simma (ed.), The Charter of the United Nations: A Commentary (Oxford University Press, 2012); and Loraine Sievers and Sam Daws, The Procedure of the UN Security Council (Oxford University Press, 2014), 39.

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484 Blanca Montejo and Georg Kerschischnig

II.1. Cold War Dynamics: The Early Days of the Organization In the early years of the organization, the Council heavily discussed its competence. The parameters of its jurisdiction were spelled out technically with reference to the provisions of the Charter and various articles were repeatedly invoked, namely Articles 2(7), 24, 34, and 39, as illustrated by the following examples. In connection with the Indonesian question, a discussion took place in August 1947 relating to the jurisdiction of the Council over the hostilities between the armed forces of the Netherlands and the Republic of Indonesia in what was the beginning of the independence process of Indonesia.11 Further to the adoption of Resolution 27(1947), which called for a ceasefire and for the parties to resort to arbitration, during a meeting held on 22 August 1947, the representative of the Netherlands argued against the Council’s jurisdiction over what he termed a ‘domestic question’ involving ‘a faction’ claiming to be a government, which opposed the ‘sovereign or paramount power’.12 He also argued that the situation did not endanger international peace. On that basis, he contended that Chapters VI and VII of the Charter were not applicable. At the time of this meeting, the question before the Council was whether to institute a commission of inquiry into the events. In a forceful speech in response to the Netherlands’ stance, the representative of India asserted that ‘[t]he Charter [gave] the Security Council all the authority that it [needed] to deal with a dispute of this kind’.13 He further stated that the Council should resist the attempt to have this matter ‘taken out its hands’ because otherwise the United Nations would be no more effective than the League of Nations in conserving peace and preventing war. In a follow-up meeting of the Council, the representative of the United States noted that the difference on the question of jurisdiction was a ‘fundamental and honest’ one and supported the proposal put forward by Belgium at the time to refer the question of the jurisdiction of the Council to the International Court of Justice (ICJ).14 In a subsequent meeting, the representative of Belgium again reiterated the importance of addressing the question concerning the jurisdiction of the Council and of his country’s proposal to resort to the ICJ.15 This proposal was rejected by the representative of the Union of Soviet Socialist Republics (USSR), arguing that, ‘[t]he Security Council’s right to deal with this question [was] established by the very fact that it undertook to examine it’.16 He argued that such an approach would cast doubt on all actions taken by the Council to that date and that the object of the Belgian proposal was really to 11 For further information on the details of the situation before the Council, see UN Doc. (1951) ST/ PSCA/1, Repertoire of the Practice of the Security Council, 1946–51, 315. See also Yassin-El-Ayouty, The United Nations and Decolonization: The Role of Afro-Asia (The Hague: Springer, 1971), 44. 12 UNSC Verbatim Record (22 August 1947) UN Doc. S/PV.192, 2145. Also of relevance were the discussions held at the Council during the 185th session, see UNSC Verbatim Record (15 August 1947) UN Doc. S/PV.185. 13 UNSC Verbatim Record (22 August 1947) UN Doc. S/PV.192, 2155. 14 UNSC Verbatim Record (25 August 1947) UN Doc. S/PV.194, 2203. 15 UNSC Verbatim Record (22 August 1947) UN Doc. S/PV.195, 2193. 16 Ibid., 2210.

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Jurisdiction of the Security Council 485 deflect the attention of the Council and the United Nations from the substance of the question and to draw attention to ‘legal considerations’ of secondary importance.17 The Belgian proposal was further discussed in a subsequent meeting during which the representative of Australia stated that, ‘it [was] very clear that the Indonesian question was brought before the Council under Chapter VII of the Charter, and it [was] very clear that action was taken under Article 40 in that certain provisional measures were undertaken or decisions made’ and that, therefore, it was very clear that it was within the competence of the Council to take further action under Chapter VII and that the matter was outside the sphere of ‘domestic jurisdiction’ covered by Article 2(7) of the Charter.18 The representative of China, along the same lines as the Australian representative, called for the draft’s withdrawal.19 The representative of Poland recalled that during the San Francisco conference the proposal to refer matters of competence to the ICJ had been rejected.20 He further noted that the jurisdiction of the Council was a political and not a legal question. The proposal ultimately was not adopted because it failed to obtain the required number of votes.21 The year after, following the ‘Prague coup’ and further to a letter from the Permanent Representative of Chile,22 the Council held a meeting on 17 March 1948, during which the question concerning the jurisdiction of the Council over the events that had occurred in Czechoslovakia in February 1948 was heatedly debated. On this occasion, the representative of the USSR argued that the consideration of Chile’s communication would be a ‘crass interference’ by the Security Council in the internal affairs of Czechoslovakia, flatly prohibited by the Charter of the United Nations. In doing so, he denied allegations of Soviet intervention, which he termed ‘slanders’ against the USSR.23 Except for the representative of the Ukrainian Soviet Socialist Republic, all other members of the Council framed the question differently—that is, as ‘external interference in the affairs of the Czechoslovak people’ and therefore not contrary to Article 2(7). Moreover, most representatives argued that the question should be examined before making a determination with regard to its substance. As expressed by the representative of Belgium, ‘inclusion in the agenda merely settles the question of admissibility and in no way prejudges the substance of the question, or even a decision on the competence of the Council’.24 The agenda (and the inclusion of the new item) was ultimately put to a vote and adopted despite the negative votes by the USSR and the Ukrainian Soviet Socialist Republic.25

17 Ibid., 2210. 18 UNSC Verbatim Record (23 August 1947) UN Doc. S/PV.195 and 196, 2216. 19 Ibid., 2218. 20 Ibid., 2222. 21 In favour: Belgium, France, United Kingdom, and United States. Against: Poland. Abstentions: Australia, Brazil, China, Colombia, Syria, and USSR. 22 UN Doc. S/694. For further details on the question before the Council, see UN Doc. (1951) ST/ PSCA/1, Repertoire of the Practice of the Security Council, 1946–51, 352. 23 UNSC Verbatim Record (17 March 1948) UN Doc. S/PV.268, 90. 24 Ibid., 100. 25 Ibid., 101. As provided for in Art. 27(2) of the Charter, there is no veto possible on procedural matters. Indeed, the text of the provision establishes that ‘Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.’ At the time, the Council had a total of eleven members and the requisite majority for procedural matters was therefore seven members.

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486 Blanca Montejo and Georg Kerschischnig Less than a decade later, in 1956, the Council was confronted by the tensions arising from the decolonization process, this time between France and Algeria. Further to a letter by thirteen Member States concerning the situation in Algeria,26 the Council held a meeting on 26 June 1956. At that meeting, members of the Council disagreed as to whether the Council had ‘competence’ over the question raised by the letter.27 Whilst the USSR requested that the consideration of the situation be postponed indefinitely pursuant to Rule 33 of the Provisional Rules of Procedure and France argued that Algerian affairs were ‘matters essentially within the domestic jurisdiction of France’, Iran instead argued (on behalf of twelve other Asian and African states) that the s ituation was of a nature ‘to give rise to a dispute between nations’, and its continuance was likely to ‘endanger the maintenance of international peace and security’.28 In this regard, the representative of Iran felt compelled to cite certain facts with a direct bearing on the question of competence. He described the situation in Algeria as a threat or a potential threat to international peace and security and, therefore, as a matter that ought to be considered by the Council and included on its agenda pursuant to Articles 24 and 34 of the Charter. Furthermore, Iran stated that it was an established fact that ‘any question which has a bearing on violations of human rights when these violations are of particular importance and are capable of affecting the cordial relations which should exist between the Members of the United Nations is not essentially within the domestic jurisdiction of a State’. As attested by numerous precedents—he added—the United Nations had always pronounced itself competent as far as questions of this nature were concerned.29 The representative of France instead argued that, according to Chapters VI and VII, ‘the Council’s competence [was] limited to “any dispute, or any situation which might lead to international friction or give rise to a dispute” ’, the continuance of which was ‘likely to endanger the maintenance of international peace and security’.30 Furthermore, he argued that, ‘neither the violation of fundamental rights nor the denial of the right to self-determination [was] a matter within the competence of the Security Council’. In sum, the representative of France concluded that threats to peace and security had to be threats to international peace and security to fall under the competence or jurisdiction of the Council.31 In a subsequent meeting on that same day, the representative of Iran argued that ‘when some members of the Council have expressed doubts as to the Council’s competence to deal with a matter in view of Article 2, paragraph 7, of the Charter, the Council has decided to place the item on its agenda in order to be able to consider the question of competence and take a decision in full knowledge of the facts’.32 He further noted that, ‘inclusion in the agenda merely settles the question of admissibility and in no way prejudges a decision on the substance of the question, or even a decision regarding the

26 UN Doc. S/3609. For further details on the situation before the Council, see UN Doc. (1958) ST/PSCA/1/Add 2, Repertoire of the Practice of the Security Council, 1956–58, 142. 27 UNSC Verbatim Record (26 June 1956) UN Doc. S/PV.729. 28 Ibid., 5. 29 Ibid. 30 Ibid., 17. 31 Ibid. 32 UNSC Verbatim Record (26 June 1956) UN Doc. S/PV.730, 4.

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Jurisdiction of the Security Council 487 competence of the Council’.33 He also added that, ‘it is somewhat a contradiction to decide that a complaint is not sufficiently serious to be examined before having examined it’.34 Ultimately, the provisional agenda was not adopted due to the lack of a sufficient number of favourable votes.35 The Council therefore did not consider the events in Algeria any further.

II.2. The First and Only Periodic Meeting of the Council Article 28(2) of the Charter of the United Nations provides that the Security Council shall hold periodic meetings at which each of its members may be represented by a member of the government or by some other specially designated representative. Based on the history of its drafting,36 these meetings (also referenced in the Provisional Rules of Procedure) were conceived to offer an opportunity to reflect about matters of international peace and security beyond specific disputes or situations and broadening the scope of the Council’s action.37 In April 1970, amidst serious concerns about the role of the Security Council, a letter from the Permanent Representative of Finland proposed to institute periodic meetings of the Council as a means of making the United Nations more effective in maintaining international peace and security.38 In a consensus statement issued by the Council on 12 June 1970, the members at the time agreed to hold the first meeting of this kind, ‘the date and other practical aspects’ of which were to be determined later.39 According to the statement, the purpose of these meetings would be to provide members with an opportunity for a ‘general exchange of views on the international situation, rather than dealing with any particular question’. The statement argued further that the holding of these meetings ‘could enhance the authority of the Security Council and make it a more effective instrument for the maintenance of international peace and security’.40 The first periodic meeting of the Security Council took place on 21 October 1970. The meeting was held in private. It was presided over by the Foreign Minister of Spain and 33 He alluded to Belgium’s position concerning the 1948 uprising in Czechoslovakia, see UNSC Verbatim Record (17 March 1948) UN Doc. S/PV.268, 100. 34 He made reference to France’s own stance with regard to 1946’s Ukraine’s complaint against Greece, see UNSC Verbatim Record (Date) UN Doc. S/PV.59, 190. 35 In favour: Iran and USSR. Against: Australia, Belgium, Cuba, France, Peru, United Kingdom, and United States. Abstentions: China and Yugoslavia. UNSC Verbatim Record (26 June 1956) UN Doc. S/PV.730, 13. 36 Bhaskarla S. N. Murti, ‘Periodic Meetings of the Security Council Article 28 Paragraph 2 of the Charter of the United Nations’ Indian Journal of International Law 10(3) (1970): 283–99. See also Andrew Boyd, Fifteen Men on a Powder Keg: A History of the U.N. Security Council (New York: Stein and Day, 1971). 37 See Hans Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems (New York: London Institute of World Affairs, 1951); and Julius Stone, Legal Controls of International Conflicts (New York: Rinehardt, 1959). 38 UN Doc. S/9759. The letter is of particular historic value in that it recaps the question of periodic meetings since the drafting of the Charter and assesses the Council’s role and performance. 39 UN Doc. S/9835. 40 Ibid.

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488 Blanca Montejo and Georg Kerschischnig attended by the Foreign Ministers of China, Colombia, Finland, France, Nepal, Nicaragua, Poland, the USSR, the United Kingdom, and the United States.41 Also in attendance were the Deputy Foreign Minister of the Syrian Arab Republic as well as the Permanent Representatives of Burundi, Sierra Leone, and Zambia. According to the official communiqué, the main issues discussed were the role of the Security Council and the need for improving peacekeeping. In addition, the situation in the Middle East and the problems in southern Africa were also the object of the discussion. The communiqué also indicated that the members of the Council had agreed to examine possibilities for further improvements in the working methods of the Council in promoting the peaceful settlement of disputes. Despite the positive assessment of the meeting, the practice of holding periodic meetings did not take hold and no other meeting of the Council of this nature was ever held again.

II.3. The End of the Cold War and the Resurgence of the Council On 31 January 1992, under the item entitled ‘The responsibility of the Security Council in the maintenance of international peace and security’, the Council held, for the first time in its history, a meeting at the level of heads of state or government of Council members, the first of the so-called summit meetings.42 The meeting was presided over by the prime minister of the United Kingdom, John Major, and attended by six Heads of State, including Presidents François Mitterrand, George Bush, and Boris Yeltsin. The meeting took place at a momentous juncture in international affairs, with the recent arrival of Secretary-General Boutros-Ghali and following the collapse of the Soviet Union and the unified response to the invasion of Kuwait. The meeting took place before major challenges to the international architecture established after World War Two, such as the war in the former Yugoslavia and the genocide in Rwanda. As President François Mitterrand put it, the only constant then was change.43 The meeting was also unique in the scope and depth of the issues addressed. Not surprisingly, against the backdrop of the thawing relations between East and West, speakers generally agreed on the need for disarmament and greater efforts towards non-proliferation in the context of the Council and beyond, in particular with regard to nuclear weapons. There was also consensus among speakers with regard to the need to strengthen early warning, conflict prevention, and peacekeeping activities. Some speakers also encouraged the new Secretary-General to take a proactive role pursuant to Article 99 of the Charter. On human rights, however, there was less agreement. Chinese 41 UNSC Verbatim Record (21 October 1970) UN Doc. S/PV.1555. 42 UNSC Verbatim Record (31 January 1992) UN Doc. S/PV.3046.

43 Ibid., 14–15.

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Jurisdiction of the Security Council 489 Premier Peng asserted that, whilst human rights should be universally respected, the issue of human rights fell within the sovereignty of each state and expressed his opposition to the interference in the internal affairs of other states using the human rights issue as an excuse.44 President Yeltsin by contrast affirmed that human rights issues were not an internal matter for states and that the Council was called upon to underscore the civilized world’s collective responsibility for the protection of human rights and freedoms. He also declared that his country’s top priority was to guarantee all human rights and freedoms ‘in their entirety’.45 During the meeting, the prime minister of Japan, Kiichi Miyazawa, proposed to strengthen the role of the United Nations in facing non-military threats to the security and prosperity of humankind, such as those relating to the environment, refugees, and poverty.46 Proposals to bridge the North–South divide were also tabled during the meeting and calls for solidarity and action abounded. The meeting concluded with the issuance of a presidential statement synthesizing the core of the discussion.47 This meeting reflected the global optimism in international relations of the 1990s. Against this backdrop, the Council experienced a resurgence of its activity,48 which led to an expansion of its scope of work and its agenda to include new thematic and crosscutting items—that is, items cutting across thematic and country- and region-specific items. Since the 1990s, items focusing on new areas of competence relating to causes of conflict,49 cross-cutting elements of conflict, and drivers of conflict have proliferated on the Council’s agenda: namely, ‘Children and armed conflict’,50 ‘Threats to peace and security caused by international terrorist acts’,51 ‘Protection of civilians in armed 44 Ibid., 92. 45 Ibid., 46. The question of human rights gave rise to interesting exchanges. The Minister of Foreign Affairs of Hungary, Mr Jeszensky, also said that for his country the respect for human rights was not merely a legal and humanitarian question but an integral part of international collective security. In this regard, he judged indispensable that the Security Council take ‘resolute action’ to protect and defend these rights (ibid., 115). The Minister of Foreign Affairs of Zimbabwe, Nathan Shamuyarira, cautioned about the need to strike a delicate balance between the rights of states, as enshrined in the Charter, and the rights of individuals, as enshrined in the Universal Declaration of Human Rights (ibid., 131.). 46 Ibid., 111. 47 UN Doc. S/23500. 48 See Loraine Sievers and Sam Daws, The Procedure of the UN Security Council (Oxford University Press, 2014), 22, Fig. 1: ‘Security Council meetings and other proceedings, 1946–2013’. 49 E.g. the first meeting under the item entitled ‘Maintenance of international peace and security’ on 25 June 2007 (UNSC Verbatim records (19 January 2012) UN Docs. S/PV.5705) was held further to a concept note circulated by the Permanent Representative of Belgium concerning natural resources and conflict (UN Doc. S/2007/334). At the meeting, the Under-Secretary-General for Political Affairs stated that illegal exploitation of natural resources often triggered, exacerbated, and prolonged armed conflict. The President of the Economic and Social Council affirmed that the challenge was to transform ‘war economies’ fuelled by natural resources into ‘peace economies’ in which those same resources provided a source of conflict prevention and human security. 50 The first meeting was held on 29 June 1998 (UNSC Verbatim Record (29 June 1998) UN Doc. S/PV.3896). 51 The first meeting was held on 13 August 1998 (UNSC Verbatim Record (13 August 1998) UN Doc. S/PV.3915).

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490 Blanca Montejo and Georg Kerschischnig conflict’,52 ‘Small arms’,53 ‘General issues relating to sanctions’,54 ‘Women and peace and security’,55 ‘Threats to international peace and security’,56 and ‘Maintenance of international peace and security’.57 Some of these items of the Council’s agenda have been reformulated over time. More recently, under some of the broadest of these thematic items—for instance ‘Threats to international peace and security’ and ‘Maintenance of international peace and security’—the Council has tackled so-called ‘global threats’ such as climate change, famine, and human trafficking.58 In recent times, the Council has also increased its interaction with civil society at public meetings and has resorted to the use of informal formats of meetings, such as Arria-formula meetings, to obtain a greater and more nuanced understanding of the reality of the situations or conflicts on the ground.59 Indeed, the changing nature of conflict has led the Council to redefine its jurisdiction in relation to the maintenance of international peace and security.

II.4. Cross-Cutting Items At the end of the 1990s, the widespread violations of international humanitarian law and international human rights law and the suffering of civilian populations that ensued gave rise to a tide of international condemnation and outrage. The Council responded with the inclusion of the following three items to its agenda: ‘Children and

52 The first meeting was held on 12 September 1999 (UNSC Verbatim Record (12 February 1999) UN Doc. S/PV.3977. 53 The first meeting was held on 24 September 1999 (UNSC Verbatim Record (24 September 1999) UN Doc. S/PV.4048). 54 The first meeting was held on 17 April 2000 (UNSC Verbatim Record (17 April 2000) UN Doc. S/PV.4128). 55 The first meeting was held on 24 October 2000 (UNSC Verbatim Record (24 October 2000) UN Doc. S/PV.4208). 56 The first meeting was held on 14 September 2005 (UNSC Verbatim Record (14 September 2005) UN Doc. S/PV.5261). 57 The first meeting was held on 25 June 2007 (UNSC Verbatim Record (25 June 2007) UN Doc. S/PV.5705). Prior to the inclusion of this item, there were other similarly formulated items of the Council agenda focused on more specific aspects; e.g. on 9 March 2000 the Council met to tackle ‘Maintaining peace and security: Humanitarian aspects of issues before the Security Council’ (UNSC Verbatim Record (9 March 2000) UN Doc. S/PV.4109). 58 Recent Council meetings exemplify this trend: the 6587th meeting of 20 July 2011 under ‘Maintenance of international peace and security’ focused on climate change (UNSC Verbatim Record (20 July 2011) UN Doc. S/PV.6587); the 8213th meeting of 20 March 2018 under ‘Maintenance of international peace and security’ focused on famine (UNSC Verbatim Record (20 March 2018) UN Doc. S/PV.8213); and the 7898th meeting of 15 March 2017 under ‘Maintenance of international peace and security’ focused on human trafficking (UNSC Verbatim Record (15 March 2017) UN Doc. S/PV.7898). 59 See Highlights of Security Council Practice, 2018, https://unite.un.org/sites/unite.un.org/files/ app-schighlights-2018/index.html.

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Jurisdiction of the Security Council 491 armed conflict’ in 1998,60 the ‘Protection of civilians in armed conflict’ in 1999,61 and ‘Women and peace and security’ in 2000.62 Against all odds, these items have proven resilient, prolific, and complex in relation to the Council’s practice and procedure. They have withstood the passage of time and have stayed on the agenda of the Council ever since. In addition, they have developed a broad scope and reach as far as the Council’s activity is concerned and have resulted in major legislative actions by the Council.63 Moreover, they have set new precedents in the establishment of new subsidiary organs, working methods, and practices. The first meetings under these items featured below are illustrative of some of the limits to the jurisdiction of the Council as understood by its members. During the first meeting of the Council under the item of ‘Children and armed conflict’, in June 1998, most of the permanent members of the Council expressed unwavering support for the Council’s consideration of this issue. The representative of the Russian Federation stated that ‘[i]n its consideration of specific conflict situations, the Security Council must devote more attention to the problems of children, and must do so in a result-oriented manner’.64 By contrast, whilst in favour of issuing a presidential statement on the item, the representative of China stated that ‘since the protection of children involve[d] a wide range of issues, the General Assembly and the Economic and Social Council [were] the appropriate forums to carry out more comprehensive, fuller and more in-depth deliberations on this question’.65 During the meeting, the representative of Costa Rica added that the problem concerning children and armed conflict represented a violation of human rights and, in this regard, he stressed that the Security Council should ‘incorporate the human rights dimension in its vision of conflicts that affect international peace and security’.66 The representative of Gabon stated that the situation of children in armed conflict could not be separated from the resolution of the global issues involved in such conflicts.67 In closing the debate, the representative of Portugal, the president of the Council at the time, argued that the seriousness, scope, and nature of the problem of children in armed conflict was relevant to the entire UN system and to the Council, ‘in the exercise of its functions and responsibilities’.68 At the first meeting on ‘Protection of civilians in armed conflict’ in February 1999, held under the presidency of Canada, some Council members again addressed the question concerning the Council’s jurisdiction. The representative of Slovenia argued that the protection of civilians in armed conflict was the responsibility of the Council, which, 60 The first meeting under this item took place on 29 June 1998, UNSC Verbatim Record (29 June 1998) UN Doc. S/PV.3896. 61 The first meeting under this item took place on 12 February 1999, UNSC Verbatim Record (12 February 1999) UN Doc. S/PV.3977. 62 The first meeting under this item took place on 24 October 2000, UNSC Verbatim Record (24 October 2000) UN Doc. S/PV.4208. 63 See Paul C. Szasz, ‘The Security Council Starts Legislating’, American Journal of International Law 96(4) (2002): 901. 64 UNSC Verbatim Record (29 June 1998) UN Doc. S/PV.3896, 11. 65 Ibid., 15. 66 Ibid., 17. 67 Ibid., 20. 68 Ibid., 44.

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492 Blanca Montejo and Georg Kerschischnig according to the Charter, had the primary responsibility for international peace and security.69 The representative of the United Kingdom stated that whilst many of the issues being discussed went ‘beyond the immediate remit of the Security Council’ and were also under discussion in other fora, there was no reason why the Council should not consider this matter or have discussions informed by the views of other actors. He added that the Council needed to work in coordination and not in isolation from the rest of the UN system and look beyond the symptoms to the causes of conflict.70 By contrast, the representative of the Russian Federation cautioned against attempts to use ‘humanitarian concerns to justify unilateral use of force’ and added that some aspects of the problem concerning the protection of the civilian population in armed conflicts fell outside the competence of the Security Council.71 The representative of China, like the Russian Federation, cautioned against the tendency to ‘politicize humanitarian issues and interfere in a country’s internal affairs under the guise of humanitarianism’. He stated that, in the light of the nature and scope of the matter, it was appropriate that the question concerning the protection of civilians in armed conflict be placed on the agenda of the General Assembly and the Economic and Social Council for more thorough and comprehensive discussions, so that each organ would be able to concentrate on its ‘own sphere of responsibility’.72 The representative of Brazil on the other hand, argued in favour of a ‘doctrinal framework’ for concerted action by the Council, the Economic and Social Council, and the General Assembly.73 Similarly, the representative of the Netherlands noted that the Council could take the initiative in requesting the establishment of a ‘strategic framework’ to guide the work of the various UN organs in complex emergencies mindful of the limits of its competence.74 The representative of Malaysia added that the question concerning the protection of civilians in armed conflict was one of which the Council should be seized on ‘a continuing basis’.75 The representative of the United States called for the strengthening of international protection of civilians, recognizing that the Council’s task of maintaining peace and security should also extend to the protection of individuals.76 In closing the discussion, the representative of Canada affirmed that the Council had a vital role to play and that promoting the protection of civilians in armed conflict was ‘no sideshow to the Council’s mandate’ but rather ‘central to it’.77 During the first meeting of the Council under the item entitled ‘Women and peace and security’, in October 2000, the overwhelming majority of speakers were supportive of the theme proposed for discussion. This notwithstanding, the representative of China noted that the question concerning women was a cross-cutting one which the UN agencies had been deliberating for many years and that the work of the Council could be synergetic with that of other agencies.78 The representative of the Netherlands added that the debate in the Council constituted an important step in the protection of women in 69 UNSC Verbatim Record (12 February 1999) UN Doc. S/PV.3977, 11. 70 Ibid., 14. 71 Ibid., 15. 72 Ibid., 30. 73 Ibid., 17. 75 Ibid., 24. 76 Ibid., 27. 77 Ibid., 31. 78 UNSC Verbatim Record (24 October 2000) UN Doc. S/PV.4208, 18.

74 Ibid., 20.

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Jurisdiction of the Security Council 493 armed conflict.79 The representative of Canada noted further that the issue required the Council’s sustained attention, arguing that the Council had all the authority and tools necessary to make a difference with the engagement of entities within and outside the UN system.80 Since the holding of the first meetings under each of the above items, the Council has not only continued to discuss the need to address these issues across conflicts and situations on its agenda but it has developed a body of practice and activity typically related to country- and region-specific items, such as subsidiary organs, specific working methods, and key legislative initiatives.

II.5. Recent Practice The differences of opinion outlined above among members of the Council in relation to its jurisdiction date back to the 1940s.81 In the most recent practice, objections to the Council’s reach in relation to country-specific items have been voiced mainly in relation to two different variables, which have been referred to separately and together: namely (i) whether the dispute or situation in question is of a domestic or international nature (concerning Articles 2(7) and 24 of the Charter), and/or (ii) whether the dispute or situation amounts to a threat to international peace and security (concerning Article 39 of the Charter).82 In a recent meeting, on 5 January 2018, under the item entitled ‘The situation in the Middle East’, the discussion in the Council focused on the then-ongoing developments in the Islamic Republic of Iran further to the protests that started on 28 December 2017.83 At that meeting, the representative of the United States defended the position that human rights fell within the Council’s competence, arguing that when the rights of people were denied, peace, and security were ‘inevitably threatened’.84 On the other hand, the representative of Bolivia objected to the holding of the meeting, which he characterized as a blatant attempt by some permanent missions to bring to the attention of the Council ‘issues that do not fall within the purview of that body’, rejecting the ‘push for meetings’ on issues that did not pose a threat to international peace and security. 79 Ibid., 23. 80 Ibid., 25. 81 See Clyde Eagleton, ‘The Jurisdiction of the Security Council over Disputes’, American Journal of International Law 40(3) (1946): 513–33. 82 See Inger Österdahl, Threat to the Peace: The Interpretation by the Security Council of Article 39 of the UN Charter (Uppsala: Swedish Institute of International Law, 1998). 83 The Council also engaged in an interesting discussion as to the boundaries of the jurisdiction of the Council during a meeting on 14 March 2018 in connection with the alleged nerve agent attack occurred in the suburbs of London and considered it under the item entitled ‘Letter dated 13 March 2018 from the Chargé d’affaires a.i. of the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council (UN Doc. S/2018/218)’. The full details of the discussion are available in the verbatim record of the meeting (UNSC Verbatim Record (14 March 2018) UN Doc. S/PV.8203). 84 UNSC Verbatim Record (5 January 2018) UN Doc. S/PV.8152, 3.

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494 Blanca Montejo and Georg Kerschischnig He further condemned ‘any threat to intervene or interfere in the internal affairs of the Islamic Republic of Iran’.85 By contrast, the representative of the United Kingdom argued that the Council was ‘perfectly empowered’ by Article 34 of the Charter to investigate any dispute or situation that may lead to international friction.86 Similarly, in reference to the situation, the representative of Peru asserted that the Council, as the organ with primary responsibility for the maintenance of international peace and security, should always have the ability to contribute to ‘conflict prevention’.87 The representative of Côte d’Ivoire noted that although the human rights situation in Iran was on the agenda of the Council, it did not ‘in principle’ constitute a threat to international peace and security.88 The representative of Ethiopia expressed doubts as to whether the Council was the proper forum for the discussion.89 Similarly, the representative of China stated that the Council ‘should not discuss the internal affairs of any country’ or become the venue for ‘any discussion of the human rights situation in a country’ adding further that the situation in Iran did not pose a threat to international peace and security and that it was not on the Council’s agenda.90 The representative of the Russian Federation qualified the meeting as a ‘misuse of the forum of the Security Council by the United States’ and drew attention to the ‘impermissibility of using contrived pretexts for including purely political matters on the agenda’.91 Insofar as thematic agenda items are concerned, the Council is often divided between two conceptions of the Council’s jurisdiction: a narrow one that regards the Council’s work as concerned exclusively with specific conflicts or situations, and an expansive one that seeks to broaden the conversation within the Council on questions of a global or cross-cutting nature. In a meeting that took place on 23 March 2018, focused on hunger and conflict, the two schools of thought outlined above could be vividly identified. Whilst certain members argued that there was a connection between hunger and conflict and that therefore the discussion belonged to the competence of the Council,92 other members argued instead that it did not fall within the Council’s competence and that the Council should focus its efforts exclusively on specific peace and security matters and avoid encroaching into the competence of other UN organs.93 Despite these differences, the Council continues to hold meetings on thematic and cross-cutting issues, thereby consolidating the growth of its jurisdiction in this area. By contrast, disagreements on issues of jurisdiction have become more palpable with regard to country- or region-specific items. 85 Ibid., 5. 86 Ibid., 7. 87 Ibid., 8. 88 Ibid., 11. 89 Ibid. 90 Ibid., 12. 91 Ibid., 13. 92 Among them, the Netherlands, Côte d’Ivoire, Peru, Bolivia, Sweden, United Kingdom, United States, Poland, and France. UNSC Verbatim Record (23 March 2018) UN Doc. S/PV.8213). 93 Ethiopia, Russian Federation, and China (ibid.). Similarly, on 18 April 2017, under the item entitled ‘Maintenance of international peace and security’ and the sub-item entitled ‘Human rights and prevention of armed conflict’, the representative of the Russian Federation, Ambassador Zayganov argued that the Council ‘has only those powers with which member States endowed it. Seeking to go beyond those powers inevitably encroaches on the competence of States or other bodies of the United Nations system, each of which has its own tasks and role’ (UNSC Verbatim Record (18 April 2017) UN Doc. S/PV.7926, 12).

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Jurisdiction of the Security Council 495 In a meeting of the Council held on 19 March 2018, the provisional agenda of the Council failed to obtain the required number of votes and was not adopted. The purpose of the meeting was to hear a briefing by the High Commissioner of Human Rights on the human rights situation in Syria under the item entitled ‘The situation in the Middle East’. The jurisdiction of the Council was openly discussed. The representative of the Russian Federation asserted that human rights was not ‘a subject on the Security Council’s agenda’ and believed it essential to cancel the meeting.94 Moreover, the representative of China stated that the primary role of the Security Council was to maintain international peace and security, ‘not to consider human rights issues’.95 Whilst the public meeting of the Council did not take place, Council members in favour of the briefing called for an Arria-formula meeting immediately thereafter,96 during which the High Commissioner was ultimately able to brief the Council members on the human rights situation in Syria.97

III. The Expansion of the Council’s Jurisdiction in the Area of Sanctions Since the first sanctions regime, concerning Southern Rhodesia (1966), in which the Council was ‘acting in accordance with Articles 39 and 41’ of the Charter,98 and in particular since the late 1990s, the Council has increasingly employed sanctions to tackle political crises, armed conflict, proliferation of weapons of mass destruction, and terrorism.99 The Council has to date established thirty sanctions regimes and terminated sixteen thereof.100 Over the years, and further to the experience of the Iraq sanctions regime, the Council has increasingly moved away from comprehensive sanctions towards more targeted sanctions measures. This also reflects the use of UN sanctions by the Security Council vis-à-vis the changing nature of conflict. While in the past sanctions were often used to ‘bend the will’ of a ‘rogue state’, as in the case of Rhodesia, sanctions 94 UNSC Verbatim Record (19 March 2018) UN Doc. S/PV.8209, 2. 95 Ibid., 3. 96 An Arria-formula meeting is not a meeting of the Council but a meeting of its members and has no verbatim record. For further information on Arria-formula meetings, see Informal Non-Paper on Arria-Formula Meetings of 25 October 2002, UN Department of Public Information, The Security Council: Working Methods Handbook, 2012. 97 See http://webtv.un.org/meetings-events/treaty-bodies/watch/zeid-raad-al-hussein-unhchr-on-thesituation-in-the-middle-east-syria-security-council-arria-formula-meeting/5754443393001/?term=?lanrus sian&sort=date. 98 See UNSC Res. 232 (26 December 1966) UN Doc. S/RES/232; see also Enrico Carisch et al., The Evolution of UN Sanctions: From a Tool of Warfare to a Tool of Peace, Security and Human Rights (Berlin and Heidelberg: Springer International Publishing AG, 2017), 173 et seq. 99 While also adopted under Art. 41 of the Charter, the restrictive measures contained in Annex B to UNSC Res. 2231 (2015) will not be discussed in this chapter. 100 For a list of current and terminated sanctions regimes please refer to https://www.un.org/sc/suborg/ en/sanctions/information and https://www.un.org/sc/suborg/en/sanctions/terminated-sanctions.

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496 Blanca Montejo and Georg Kerschischnig are now increasingly used as an instrument to press non-state actors into a peace process or to protect a peace process in support of Member States. Sanctions are therefore not employed in a void, but rather in support of other actions by the Council. While national sanctions or sanctions imposed by regional organizations have a limited scope of action,101 UN sanctions—that is, sanctions imposed by the Security Council pursuant to Article 41 of the Charter—are truly universal and binding on all Member States in accordance with Articles 25 and 48.

III.1. The Operationalization of UN Sanctions In the area of sanctions, the cooperation between the Security Council and Member States for the operationalization of the measures is key. From the first regimes in the 1960s to the present, the Council has expanded its jurisdiction considerably in its pursuit of more effective measures to prevent and tackle conflict. Indeed, the Council determines the type and scope of sanctions measures through its decisions (typically in the form of resolutions), which Member States are subsequently bound to implement pursuant to Articles 25 and 48 of the Charter. This notwithstanding, Member States are also bound by their institutional and legal frameworks. Implementation is often complex. Sanctions measures imposed by the Council can be broadly divided into targeted measures aimed at individuals and entities102 and sectoral bans aimed at certain categories of goods or services. Each category has an impact on different areas of Member States’ jurisdiction and creates obligations relating to national implementation. Secondary sanctions may be imposed in the event of a Member State’s non-compliance. On the other hand, where private actors or the private sector are required for implementation, non-compliance is usually criminalized by national law. Sanctions measures are usually overseen by Security Council sanctions committees, the tasks of which include the monitoring of sanctions, their implementation, and assistance to Member States. The Council has, in more recent cases, assigned the monitoring and reporting of sanctions to the expert panels assisting sanctions committees or, in some cases, to UN field missions, the Secretary-General, or other actors.103 Sanctions committees conduct their work on the basis of guidelines adopted at the moment of their establishment. These guidelines often provide guidance to Member States on the implementation of specific measures. The Council may also request Member States to report on the implementation of sanctions. 101 An example of national (also referred to as unilateral) sanctions are those imposed by the United States and administered and enforced by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. An example of multilateral or regional sanctions are those imposed by the European Union, the African Union, or the Economic Community of West African States (ECOWAS). 102 In Council sanctions terminology, ‘individual’ refers to a human being, whereas ‘entity’ refers to artificial persons, such as corporations. 103 See e.g. UNSC Res. 1584 (1 February 2005) UN Doc. S/RES/1584, para. 2 or UNSC Res 2048 (18 May 2012), para. 11.

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Jurisdiction of the Security Council 497 The Council’s recent practice in relation to sanctions measures allows for flexibility to adjust to the specific circumstances of the situation or conflict concerned. It also has due regard to the competing jurisdictions of Member States (including private law obligations such as contractual obligations that predate the establishment of the sanctions). Flexibility in sanctions is also introduced through built-in exceptions and exemptions to the measures imposed. Exceptions preclude the applicability of sanctions a priori, which means the specific subject matter covered by the exception does not fall under the scope of the sanctions regime (it is ‘excepted’). Exemptions are optional carve-outs that have to be notified to or requested from the relevant sanctions committee to be activated. Both exceptions and exemptions avoid that a sanctions regime to hinder the implementation of other Council priorities, for instance humanitarian aid, political transitions, or peace processes. Exemptions can also mitigate unintended consequences, address hardship experienced by targeted individuals, or allow for the continued operation of targeted entities. In addition, Member States may have recourse to Article 50 of the Charter should ‘special economic problems’ arise that derive from the implementation of sanctions measures imposed by the Council. With the effective disappearance of comprehensive sanctions, recourse to Article 50 has decreased to become almost negligible.104 However, other challenges remain, and the Council has developed a series of mechanisms to interact with Member States in the implementation of sanctions measures. Member States can address the relevant sanctions committee directly to resolve issues of concern and request guidance. Moreover, Member States may also engage with the expert panel assisting the relevant committee. This option is also a vailable to individuals and entities, who would otherwise have to seek the assistance of a Member State to address the Council or its committees.105 In addition, Member States may also choose to raise a matter directly with the Security Council, orally at a Council meeting under the relevant agenda item, or in writing by submitting a letter to the President of the Security Council. This is often the way Member States most affected by a sanctions regime, notably the state subject to sanctions, express their concerns, which may lead to the adjustment of the relevant sanctions regime.106 Through these mechanisms, the Security Council is 104 This kind of concerns were traditionally raised in the context of the UN General Assembly’s Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization (see in particular UNGA Res. 51/242 (26 September 1997) UN Doc. A/RES/51/242, UNGA Res. 62/69 (8 January 2008) UN Doc. A/RES/62/69, and UNGA Res. 64/115 (15 January 2010) UN Doc. A/RES/64/115). Since 2017, however, the Charter Committee has sharpened its focus on sanctions in general, as evidenced by its requests for regular special sanctions reports by the Secretary-General (see UNGA Res. 71/146 (20 December 2016) UN Doc. A/RES/71/146, para. 3 and UNGA Res. 72/118 (18 December 2017) UN Doc. A/RES/72/118, para. 4). 105 The Security Council and the sanctions committees do in general not interact with individuals. In some cases, committee guidelines allow for the relevant UN office to act as a go-between, in particular for some exemption requests. 106 See e.g. Libya requesting changes to the asset freeze and expressing concerns about the smuggling of petroleum products, UNSC Verbatim Record (19 April 2017) UN Doc. S/PV.7927, UNSC Verbatim Record (7 June 2017) UN Doc. S/PV.7961, and UNSC Verbatim Record (28 August 2017) UN Doc. S/PV.8032, as

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498 Blanca Montejo and Georg Kerschischnig able to resolve implementation issues arising from the sanctions measures imposed. This results in diminishing friction between the jurisdiction of the Council and that of Member States through enhanced guidance by the relevant committee,107 or in the adjustment of the measures.108

III.2 Expansion of UN Sanctions vis-à-vis Member States The smooth interaction between the jurisdiction of the Security Council and Member States is crucial for the success of sanctions in general and specifically with regard to sectoral bans. Sectoral bans deny access to specific goods or services by or from a Member State under sanctions. The objectives of sectoral bans differ by the good or service concerned and by the situation at hand. Their scope is broad and ranges from measures restricting the flow of arms in and out of a conflict, to measures hindering the acquisition of proliferation-sensitive items, or reducing the income of conflict actors and degrading a Member State’s military capability. Sectoral bans usually require Member States to effectively prevent the supply, sale, or transfer of embargoed goods or services to the Member State under sanctions from or through their territories or by their nationals, flagged vessels, or aircraft.109 Conversely, Member States under sanctions are often not allowed to export embargoed goods, and other Member States are required to prohibit the procurement of such goods from that state.110 As a result, Member States are also required to undertake additional enforcement activities, such as the inspection of shipments in transit and seizing and disposing of prohibited items, on occasion even on the high seas.111 In rare cases, under certain conditions, the Council has extended the authorization to enforce measures, such as an arms embargo, to the high seas, even without the consent of the flag state.112 In doing so, the Council has ventured into jurisdictional issues concerning the UN Convention on the Law of the Sea and customary international law. Furthermore, under certain well as the letter dated 21 March 2016 from the Permanent Representative of Libya to the United Nations addressed to the President of the Security Council (UN Doc. S/2016/275) and the letters dated 26 June and 21 July 2017 from the chargé d’affaires a.i. of the Permanent Mission of Libya to the United Nations addressed to the President of the Security Council (UN Doc. S/2017/543 and UN Doc. S/2017/629). 107 See e.g. Security Council Committee established pursuant to Resolution 1970 (2011) concerning Libya, implementation assistance notices, https://www.un.org/securitycouncil/sanctions/1970/ implementation-assistance. 108 See e.g. Libya sanctions regime, UNSC Res. 2362 (29 June 2017) UN Doc. S/RES/2362, which extended the measures contained in UNSC Res. 2146 (19 March 2014) UN Doc. S/RES/2146 relating to illicit exports of crude oil to also cover petroleum products after Libya addressed the Council (n. 109). 109 See e.g. UNSC Res. 1970 (26 February 2011) UN Doc. S/RES/1970, para. 9. 110 UNSC Res. 1970 (26 February 2011) UN Doc. S/RES/1970, para. 10. 111 See e.g. UNSC Res. 2375 (11 September 2017) UN Doc. S/RES/2375, paras. 7, 8. 112 See e.g. UNSC Res. 1973 (17 March 2011) UN Doc. S/RES/1973, para. 13; UNSC Res 2292 (14 June 2016) UN Doc. S/RES/2292, para. 3; and UNSC Res. 2146 (19 March 2014) UN Doc. S/RES/2146, para. 5.

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Jurisdiction of the Security Council 499 conditions, the Council has also required Member States to prohibit the provision of bunkering and other services, or to deny entrance to their ports, to vessels transporting prohibited goods.113 While part of the goods and services falling under sectoral bans are, by their nature, already subject to regulation by Member States, the imposition of sectoral bans may require Member States to regulate hitherto unregulated areas. Since they directly affect Member States’ international trade relations, sectoral bans can have a significant impact on areas not only subject to international trade agreements and frameworks, but also to private international law. Sectoral bans can disrupt standing commercial contracts, including the financing of obligations under the contract and the fulfilment of those obligations. When implementing sectoral bans, a Member State needs to ensure that the private sector under its jurisdiction is aware of the restrictions, and also complies with them. The following examples demonstrate the breadth of the different sanctions measures in this context, requiring Member States to introduce a plethora of national implementation instruments. One of the most widely used sectoral bans is the arms embargo, currently employed— to different extents—under eleven sanctions regimes. It restricts imports and/or exports of arms and related materiel and may encompass the entire territory of the Member State under sanctions114 or parts thereof,115 and may relate to all116 or to specific actors,117 and may relate to specific types of weapons only.118 Arms embargoes usually also include ammunition, spare parts, and other military equipment, for instance military vehicles or uniforms. In many cases, related technical assistance, training, or financial assistance also fall under the arms embargo. The embargo can even include the provision of mercenaries.119 Arms embargoes require the creation of stringent import and export controls, beyond what would usually be required under relevant arms control instruments. While some sanctions committees issue specific guidance on which items fall under an embargo,120 most do not. Lacking universally agreed definitions of arms and related materiel, it therefore remains the prerogative of Member States to define the scope of 113 See e.g. UNSC Res. 2146 (19 March 2014) UN Doc. S/RES/2146, para. 10 and UNSC Res. 1874 (12 June 2009) UN Doc. S/RES/1874, para. 17. 114 See e.g. UNSC Res. 1718 (14 October 2006) UN Doc. S/RES/1718, para. 8; and UNSC Res. 1970 (26 February 2011) UN Doc. S/RES/1970, paras. 9, 10. 115 See e.g. UNSC Res. 1333 (19 December 2000) UN Doc. S/RES/1333, para. 5; UNSC Res. 1556 (30 July 2004) UN Doc. S/RES/1556, para. 9; and UNSC Res. 1591 (29 March 2005) UN Doc. S/RES/1591, para. 7. 116 See e.g. UNSC Res. 1970 (26 February 2011) UN Doc. S/RES/1970, para. 9 (before adoption of UNSC Res. 2095 (14 March 2013) UN Doc. S/RES/2095, para. 10). 117 See e.g. Resolution 1556 (2004), para. 9; UNSC Res. 1822 (2008), para. 1; and UNSC Res. 2216 (2015), para. 14. 118 See e.g. UNSC Res. 1718 (2006), para. 8. 119 See e.g. UNSC Res. 1970 (26 February 2011) UN Doc. S/RES/1970, para. 9. 120 See e.g. Letter dated 2 October 2017 from the Chair of the Security Council Committee established pursuant to Resolution 1718 (2006) addressed to the President of the Security Council, UN Doc. S/2017/829.

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500 Blanca Montejo and Georg Kerschischnig the measure (as well as their obligation), without prejudice to the relevant sanctions committee’s guidance.121 Member States’ fiscal and economic policies are also affected when the Security Council uses sectoral bans to curtail the sources of income for parties in conflict, or to protect the income of governments in post-conflict scenarios. Depending on the situation, the Council has imposed sectoral bans on specific commodities, goods, or natural resources (e.g. petroleum,122 charcoal,123 diamonds,124 or gold and rare earth minerals125). Moreover, the exploitation of natural resources has also been used as a designating criterion to list individuals and entities affecting key economic sectors of certain Member States.126 The Council has also used sectoral bans to keep specific goods (e.g. jet fuel or luxury goods) out of a Member State under sanctions, thereby targeting the country’s political elite127 or placing economic strain on the military activities of a party to a conflict (which are sometimes associated with a Member State government).128 In sum, bans on commodities, goods or natural resources relate to areas often not subject to import or export restrictions (with some exceptions, for instance endangered species or rare woods). By requiring Member States to introduce import or export restrictions as a result of sectoral bans, the Security Council ventures into areas traditionally within the exclusive sphere of influence of Member States.129 In the military and economic sphere of Member States, the Security Council has used non-proliferation measures to restrict access to nuclear, ballistic missile and weapons of mass destruction-related items and activities (e.g. training and financing) by sanctioned Member States. Lists of prohibited items define the scope of the ban and assist Member States in implementing the measures, including through dual-use ‘catch-all’ provisions on items and activities potentially deemed to contribute to proliferation activities.130 The Council has also targeted the support networks behind proliferation efforts on the part of a Member State under sanctions, including by requiring Member States to (i) prohibit proliferation-sensitive training of that state’s nationals,131 (ii) expel individuals

121 See e.g. Letter dated 4 March 2016 from the Panel of Experts on Libya established pursuant to Resolution 1973 (2011) addressed to the President of the Security Council, UN Doc. S/2016/209, Annex 10, 160 (para. 10). 122 See e.g. UNSC Res. 2375 (11 September 2017) UN Doc. S/RES/2375, para. 14. 123 See e.g. UNSC Res. 2036 (22 February 2012) UN Doc. S/RES/2036, para. 22. 124 See e.g. UNSC Res. 1173 (12 June 1998) UN Doc. S/RES/1173, para. 12 (b). 125 See e.g. UNSC Res. 2270 (2 March 2016) UN Doc. S/RES/2270, para. 30. 126 See e.g. UNSC Res. 2213 (27 March 2015) UN Doc. S/RES/2213, para. 11(c). 127 See e.g. UNSC Res. 2270 (2 March 2016) UN Doc. S/RES/2270, para. 31; and UNSC Res. 1718 (14 October 2006) UN Doc. S/RES/1718, para. 8. 128 See e.g. UNSC Res. 2397 (22 December 2017) UN Doc. S/RES/2397, paras. 4, 6. 129 Such restrictions can have the positive side effect of contributing to the establishment of new trade regulations and standards, such as the Kimberly process, which was an indirect outcome of the Angola sanctions regime. 130 See e.g. UNSC Res. 2270 (2 March 2016) UN Doc. S/RES/2270, paras. 17, 27, 35–7. 131 UNSC Res. 2270 (2 March 2016) UN Doc. S/RES/2270, para. 17.

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Jurisdiction of the Security Council 501 linked to proliferation,132 (iii) curtail financing,133 (iv) reduce the number of the state’s diplomats in the country concerned, as well as their access to funds,134 or (v) close any offices linked to listed individuals and entities.135 In the non-proliferation context, the Security Council has also sometimes imposed business and financial restrictions on nationals and entities of Member States under sanctions, thereby affecting the financial regulatory framework of Member States. These usually aim at preventing the provision of funds to that Member State, so that such funds cannot be used in activities that run counter to the objective of other sanctions measures.136 These measures are largely implemented by the authorities of Member States, which have to determine which individuals and entities fall under this measure. Overall, the action of the Council with respect to sectoral bans is far-reaching insofar as it concerns the jurisdiction of Member States. Without prejudice to the Charter’s Chapter VII framework for enforcement measures, the Council’s action has at times challenged jurisdictional assumptions. Such is the case also with respect to the subjects of targeted sanctions (i.e. individuals and entities).

III.3. UN Sanctions Expansion vis-à-vis Individuals and Entities The consolidation of targeted sanctions has given rise to the expansion of the jurisdiction of the Security Council over non-state actors through measures such as travel bans or asset freezes. Indeed, the Council, based on designation criteria laid out in its resolutions, directly or through the designated sanctions committee, lists individuals and e ntities as targets of measures.137 As a result, the Council extends its jurisdiction beyond Member States to individuals and entities. As a result of this expansion of its jurisdiction, the Council has faced some level of scrutiny. In the well-known Kadi case, the European Court of Justice took it upon itself to review a Council listing under EU law.138 Subsequently, in the Kadi II case, the Court held that an EU regulation implementing Council resolutions was not immune from the Court’s review.139 Some of the due process concerns raised by the Kadi case and similar

132 UNSC Res. 2270 (2 March 2016) UN Doc. S/RES/2270, paras. 13, 14. 133 UNSC Res. 2270 (2 March 2016) UN Doc. S/RES/2270, paras. 32–7. 134 UNSC Res. 2321 (30 November 2016) UN Doc. S/RES/2321, paras. 14, 16. 135 UNSC Res. 2270 (2 March 2016) UN Doc. S/RES/2270, para. 15. 136 See e.g. UNSC Res. 2270 (2 March 2016) UN Doc. S/RES/2270, para. 33; and UNSC Res. 2321 (30 November 2016) UN Doc. S/RES/2321, paras. 31–3; UNSC Res. 2375 (11 September 2017) UN Doc. S/RES/2375, para. 18. 137 The sanctions committees, in turn, keep dedicated sanctions lists, and the Council retains a consolidated sanctions list (available on its website) including all current sanctions regimes. 138 See Devika Hovell, The Power of Process: The Value of Due Process in Security Council Sanctions Decision-Making (Oxford University Press 2016), 11, 24 et seq. 139 See also ibid., 132.

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502 Blanca Montejo and Georg Kerschischnig cases thereafter were addressed through the creation of the Office of the Ombudsperson established pursuant to Resolution 1904 (2009). However, this mechanism only serves one out of fourteen current sanctions regimes. Individuals and entities designated on a sanctions list can seek their delisting either through a Member State, which can endorse and forward such request to the relevant committee, or through one of two distinct mechanisms: (i) for the ISIL (Da’esh) and Al-Qaida sanctions regime, to the Office of the Ombudsperson, and (ii) for all other sanctions regimes, to the Focal Point for Delisting.140 Delisting cases have exposed fault-lines at the junction between the Council’s jurisdiction and that of Member States. Since the Kadi decision, new cases have challenged the implementation of sanctions imposed by the Council to the extent such implementation affects the rights of individuals and entities, as illustrated by the specific measures described below.141 One of the most common forms of sanctions measures directed at individuals is the travel ban, which features in all fourteen current UN sanctions regimes and has also been part of most post-1990 sanctions regimes. A travel ban, as a targeted measure, restricts the movement of targeted individuals. It usually requires Member States to prevent the entry into or transit through their territories of individuals subject to the travel ban.142 The enforcement of travel bans is often aided by INTERPOL-UN Security Council Special Notices, which adds an additional layer of vigilance through d issemination of sanctions lists through INTERPOL networks.143 The asset freeze is also common and features in thirteen of the current UN sanctions regimes and, like the travel ban, has been part of most post-1990s sanctions regimes. Also a targeted measure, the asset freeze can apply both to individuals and entities and restricts the movement of capital, property, and other valuables. Usually, it requires Member States to freeze funds, financial assets, and economic resources that are owned or controlled by the listed individuals or entities. This control is realized by Member States to ensure that no funds, financial assets, or economic resources are made available to or for the benefit of such individuals or entities,144 but also indirectly by third parties such as financial institutions. These measures also have an impact on third party relationships, such as those between a bank and an account-holder who is listed as a target. In most cases, the brunt (and the risk) of the implementation of this measure falls on the private sector, in particular the financial sector, while the role of Member States is limited to passing legislation to ensure that private entities under their jurisdiction comply with the asset freeze. 140 For the Focal Point’s mandate, see Annex to UNSC Res. 1730 (19 December 2006) UN Doc. S/RES/1730. 141 For a detailed overview of such cases, see James Cockayne et al., Fairly Clear Risks: Protecting UN Sanctions’ Legitimacy and Effectiveness through Fair and Clear Procedures (Tokyo and New York: United Nations University, 2018). 142 See e.g. UNSC Res. 1970 (26 February 2011) UN Doc. S/RES/1970, para. 15. 143 Special Notices, INTERPOL–UN Security Council Special Notice, https://www.interpol.int/ INTERPOL-expertise/Notices/Special-Notices. 144 See e.g. UNSC Res. 1970 (26 February 2011) UN Doc. S/RES/1970, para. 17.

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Jurisdiction of the Security Council 503

IV. Conclusions While military threats to international peace might have been the primary situations anticipated when the Security Council was created, the Council today has broadened its scope reflecting (albeit with differences among its members) an evolving understanding of the concept of international security as well as its responsibility for the maintenance of international peace and security. The Council’s current practice and the expansion of its reach also reflect a complex and interconnected world, one where the traditional boundaries of national and international jurisdiction are no longer clear and/or desirable. The Charter foresaw a broader role for the Council in the context of periodic meetings, one that would enable it to review complex and broad issues very much like the ones that the world is facing today. During the Cold War, a cross-cutting review by the Council of the challenges facing mankind was prevented by the antagonism existing between the Western and Eastern blocs. With the end of the Cold War, however, whilst the format of periodic meetings was not pursued (alternatives such as high-level and summit meetings arose instead), the Council expanded its agenda (and its jurisdiction) to consider broader issues affecting international peace and security. The resistance of some of its members has not impeded the expansion of the Council’s jurisdiction. This is particularly visible in relation to the so-called cross-cutting issues as well as the broad thematic agenda items. These have enabled the Council to tackle emerging trans-boundary and global issues such as climate change, natural resources, migration, and global health. Through its practice, the Security Council has also demonstrated creativity and flexibility in using sanctions to deliver on its primary responsibility for the maintenance of international peace and security. Informed by the work of its committees and panels of experts, the Council has confirmed, modified, or terminated sanctions measures in line with evolving situations on the ground, and has not shied away from venturing into new areas. Moreover, even if only to a certain degree, the Council has reacted to criticism and adjusted course with respect to the impact of its measures on individuals. Despite the criticism of the Council in relation to its lack of action with regard to conflict prevention, the record of the Council shows a concerted and consistent effort to tackle global problems with the tools that the Charter had made available. While consistently expanding its jurisdiction, in particular in the sanctions context, the Council has at the same time increased its interaction with Member States and civil society, including at public meetings of the Council and committee meetings open to concerned Member States, to obtain a greater and more nuanced understanding of the reality of the situations or conflicts on the ground. For all its misgivings and criticisms, the analysis of its jurisdiction in this chapter reveals that the Security Council of the twenty-first century is interested in preventing and resolving conflict, adapts creatively to changing circumstances, reacts to criticism, and expands its audience and participants.

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Chapter 21

I n ter nationa l Cr im i na l J u r isdiction Kirsten Schmalenbach

I. Introduction: International Criminal Jurisdiction versus State Sovereignty

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II. Possible Foundations of International Criminal Jurisdiction

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II.1. Terminological and Conceptual Choices II.2. State Consent as the Foundation of International Criminal Jurisdiction II.3. International Community Mandate as the Foundation of International Criminal Jurisdiction

III. The Judiciary’s Perspectives

III.1. Compétence de la Compétence of International Criminal Courts and Tribunals III.2. International Criminal Tribunals Established by Occupying Powers: International Military Tribunals of Nuremberg and Tokyo III.3. International Criminal Tribunals Established by the UN Security Council: ICTY, ICTR, and STL III.4. International Criminal Tribunals Established by a Bilateral Treaty with the UN: SCSL III.5. International Criminal Tribunals Established by a Multinational National Treaty: The International Criminal Court

IV. Assessment and Conclusion

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513 513 514 518 521 523

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I. Introduction: International Criminal Jurisdiction versus State Sovereignty Whenever the establishment of an international judicial body having competences in criminal matters with greater or lesser jurisdictional reach (i.e. international criminal jurisdiction) is discussed, those wary of such bodies routinely point at their intrusion into national sovereignty.1 They highlight existent constitutional safeguards, democratic legitimacy, and the effectiveness of domestic criminal procedures to support their view of such bodies being unnecessary, whereas advocates of international criminal justice find justification and see a need arising from the prevailing inability, unwillingness, or indifference of states to investigate and prosecute international crimes that have shocked the international community’s collective conscience.2 It is apparent that both camps use different rhetoric targeted towards divergent constituencies and to this end frequently simplify the complex relationship between national and international criminal jurisdiction.3 Having said that, although sceptics tend to gloss over their blatant dislike of the mere idea of international criminal jurisdiction,4 there is no denying that the concept is a particular imposition on state sovereignty: international criminal justice is supranational in nature if only for the sole reason that a tribunal’s power to adjudicate international crimes and enforce international criminal law is coercive vis-à-vis the individual accused, with no state judiciary serving as an intermediary.5 Most importantly in this regard, the execution of international judicial bodies’ sentences by willing states does not refute the supranational character of international criminal jurisdiction, given that the enforcement of these sentences is in recognition of the bodies’ power to impose such punishment.

1 See e.g. in the context of the drafting of the 1949 Genocide Convention: UNGA, ‘Historical Survey of the Question of International Criminal Jurisdiction: Memorandum Submitted by the SecretaryGeneral’ (1949) UN Doc. A/CN.4/7/Rev.1, 36–8. 2 These have been to major lines of argument for and against an explicit reference to international criminal jurisdiction in the Genocide Convention, ‘Memorandum Submitted by the Secretary-General’ (n. 1), 34. 3 Morten Bergsmo and Ling Yan, ‘On State Sovereignty and Individual Criminal Responsibility for Core International Crimes in International Law’, in Morten Bergsmo and Ling Yan (eds.), State Sovereignty and International Criminal Law (Beijing: Torkel Opsahl Academic EPublisher, 2012), 4. 4 Robert Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’, European Journal of International Law 16 (2005): 979, 981. 5 Sascha Rolf Lüder, ‘The Legal Nature of the International Criminal Court and the Emergence of Supranational Elements in International Criminal Justice’, International Review of the Red Cross 845 (2002): 79, 88 et seq.; Madeline Morris, ‘The Democratic Dilemma of the International Criminal Court’, Buffalo Criminal Law Review 5 (2002): 591, 594; contra: Cherif Bassiouni, ‘The Permanent International Criminal Court’, in Mark Lattimer and Philippe Sands (eds.), Justice for Crimes against Humanity (Oxford: Hart Publishing, 2003), 181.

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506 kirsten schmalenbach Supranational criminal jurisdiction, a label carefully avoided in international parlance in order to spare the sensitivities of states, is especially disconcerting for any state which has not consented to its exercise but whose sovereign sphere is nevertheless affected. The intrusion is particularly evident if the international judicial body is competent to proprio motu establish jurisdiction over non-state party nationals for international crimes committed abroad. For any non-state party so affected, the situation is further aggravated by the fact that international criminal bodies—in contrast to states exercising territorial jurisdiction over foreign nationals—are prima facie less s usceptible to diplomatic manoeuvring that may result in jurisdictional trade-offs.6 In addition to all this, international criminal courts and tribunals possess either an explicitly7 or implicitly8 assigned power to authoritatively clarify not only the scope of their particular criminal jurisdiction but also the prerequisites to exercise it. In the sovereigntysensitive area of personal jurisdiction these bodies easily emancipate themselves from reliance on what most states consider the exclusive source of international c riminal jurisdiction: their own primary criminal jurisdiction coupled with their individual consent in its ‘transferral’ to the international level. Having said that, it would be erroneous to assume that domestic criminal jurisdiction is undisputedly considered the sole possible foundation and justification of international criminal jurisdiction. Indeed, it can be said that the issue of the proper foundation of international criminal jurisdiction is an ongoing dispute over semantics and concepts (Section II) with the international criminal courts and tribunals having their own respective and varying opinions on the matter (Section III).

II. Possible Foundations of International Criminal Jurisdiction II.1. Terminological and Conceptual Choices When academia and practitioners contemplate the foundation of international criminal jurisdiction, they utilize a wealth of adjectives and terms, the legal implications of which are not always readily apparent. For example, notions of transferred, delegated, conferred, inherent, and universal jurisdiction are terms mainly coined and employed in domestic legal orders and hence require critical reassessment in the context of international

6 Madeline Morris, ‘High Crimes and Misconceptions: The ICC and Non-Party States’, Law and Contemporary Problems 64 (2001): 13, 29. 7 e.g. Art. 19, para. 1, ICC Statute. 8 See e.g. Nottebohm (Liechtenstein v Guatemala) (Preliminary Objections) [1953] ICJ Rep. 111, 119: ‘The judicial character of the Court and the rule of general international law referred to above are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case.’

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international criminal jurisdiction 507 criminal jurisdiction, all the more so as their nuanced usage easily prejudices discussions about the reach of international criminal jurisdiction. The term ‘delegated’ and—often synonymously9—‘transferred’ jurisdiction is especially popular with authors that consider international criminal courts as mere creatures of state parties. In her influential piece, Madeline Morris took the phrase ‘delegated jurisdiction’ as a starting point to argue that the International Criminal Court (ICC) breaches international legal principles when exercising jurisdiction over non-party nationals,10 while Dapo Akande’s plausible rebuttal takes ‘delegated jurisdiction’ and the ICC’s ‘transferred right to prosecute’ as the unquestioned legal starting point.11 This choice of wording is not accidental: whereas the adjective ‘delegated’ carries the idea that states entrust an international criminal court with their sovereign authority in a particular matter to exercise criminal jurisdiction and administer criminal justice,12 the designation ‘transfer’ (also: cession13) emphasizes a voluntary conveyance by states of their sovereign jurisdictional title to an international criminal court. It is particularly prejudiced to speak of transferred jurisdiction as the term inherently implies that, first, the transferring state ‘surrenders’14 its criminal jurisdiction to the international court and, second, that the transfer is both as far-reaching as well as restricted as the competences and powers that the transferring state legally possesses (nemo plus iuris transferre potest quam ipse habet).15 In this regard, it is worth noting that Germany acceded to the ICC on the basis of a constitutional provision that allowed the ‘transfer of sovereign powers’ to international organizations, whereas Ireland had to amend its constitution ‘because the submission to the jurisdiction of the International Criminal Court would entail a partial transfer to the court of the sovereign power of the State to administer criminal justice’.16 However, the choice of wording is not necessarily of legal significance, 9 Monique Cormier, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-State Parties’, PhD thesis (2017), 58. 10 Morris (n. 6), 50 fn. 137. 11 Dapo Akande, ‘Prosecuting Aggression: The Consent Problem and the Role of the Security Council’ (Working Paper, Oxford Institute for Ethics, Law and Armed Conflict, May 2010), https://papers.ssrn. com/sol3/papers.cfm?abstract_id=1762806, 32; Dapo Akande, ‘The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits’, Journal of International Criminal Justice 1 (2003): 618, 621; the term ‘transfer’ is also used by Bernhard Graefrath, ‘Universal Jurisdiction and the International Criminal Court’, European Journal of International Law 1 (1990): 67, 76. 12 Cf. the entry ‘delegation’ in Black’s Law Dictionary, 5th edn (Eagan: Thomas Reuters Legal, 2016). 13 Mitsue Inazumi, ‘The Meaning of the State Consent Precondition in Article 12(2) of the Rome Statute of the International Criminal Court: A Theoretical Analysis of the Source of International Criminal Jurisdiction’, Netherlands International Law Review 49 (2002): 159, 165 fn.16. 14 Hazel Fox, ‘The Objections to Transfer of Criminal Jurisdiction to the UN Tribunal’, International and Comparative Law Quarterly 46 (1997): 434, 436. 15 e.g. Cedric Rygaert, ‘The International Criminal Court and Universal Jurisdiction: A Fraught Relationship?’ North Carolina Law Review 12 (2009): 498, 501; Michael A. Newton, ‘How the International Criminal Court Threatens Treaty Norms’, Vanderbilt Journal of Transnational Law 49 (2016): 371; see for the ‘delegation’ of judicial powers: Effect of Awards of Compensation Made by the UN Administrative Tribunal (Advisory Opinion) [1954] ICJ Rep. 47, 61: ‘By establishing the Administrative Tribunal, the General Assembly was not delegating the performance of its own functions.’ 16 Explanatory Memorandum of 27 March 2001 to the Twenty-Third Amendment of the Constitution Bill, 2001, Wt. P50672/B/3. 925. 3/01.

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508 kirsten schmalenbach as stressed by German academia and jurisprudence, both of which consider the constitution’s language ‘transfer of sovereign powers’ a misnomer that must be interpreted as the state’s admittance of courts’ or tribunals’ genuine but selective supranational powers into the state’s territorial jurisdiction.17 With this in mind, the use of ‘conferment of jurisdiction’ in contrast to ‘transfer’ allows for a more neutral understanding regarding the legal implications of the process.18 That having been said, speaking of conferral still carries a clear message: the international (criminal) court has no jurisdiction stemming from its own volition, but only via the consent and decision of other actors, which are ultimately always states (see Section II.2 of this chapter). By way of observation, the exact opposite is conveyed if one were to refer to an ‘inherent’ jurisdiction of international criminal courts and tribunals. Generally speaking, the adjective ‘inherent’ indicates a permanent and natural attribute of an intrinsic nature— that is, the jurisdiction is not derived from an external source such as state consent, but directly from the court’s own status and judicial function.19 However, in the context of international criminal jurisdiction, the connotation ‘inherent jurisdiction’ can take on a somewhat different meaning: especially in academia, the term is used to indicate that international criminal jurisdiction has an intrinsic link and principal foundation in the will and the mandate of the international community as a whole, and does not rely upon the internationally expressed consent of each individual state. A final semantic construct, to complete the picture of terminological and conceptual confusion, sees some authors speak of ‘universal international jurisdiction’20 when an international juridical body exercises international criminal jurisdiction without the need for states to consent to the body’s work in general (e.g. the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)) or in a specific case before it (e.g. ICC).21 The use of this epithet often indicates the user leans in some way towards the international community approach to international criminal jurisdiction (see Section II.3 of this chapter).

17 2 BvL 52/71—Solange I, Decision of 29 May 1975, para. 3; especially for international criminal law: Christiane Globke, Die Auslieferung an den Internationalen Strafgerichtshof (Tübingen: Mohr-Siebeck, 2009), 79 et seq., 209 et seq. 18 In the International Law Commission’s first draft statute of an international criminal court, the Special Rapporteur proposes the following text: ‘1. The Court shall try individuals accused of the crimes defined . . . in respect of which the State or States in which the crime is alleged to have been committed has or have conferred jurisdiction. 2. Conferment of jurisdiction . . . shall be required only if such States also have jurisdiction, under their domestic legislation, over such individuals.’ Yearbook of the ILC 2(1) (1991), paras. 38–41. 19 Chester Brown, ‘The Inherent Powers of International Courts and Tribunals’, British Yearbook of International Law 76 (2006): 195, 205. 20 Leila Nadya Sadat, ‘Redefining Universal Jurisdiction, Address Symposium: Universal Jurisdiction: Myths, Realities and Prospects’, New England Law Review 35 (2001): 241, 246. 21 Ibid., 251; Evo Popoff, ‘Inconsistency and Impunity in International Human Rights Law: Can the International Criminal Court Solve the Problems Raised by the Rwanda and Augusto Pinochet Cases’, Geo. Washington International Law Review 33 (2001): 363, 389; for a different view see Mitsue Inazumi, Universal Jurisdiction in Modern International Law, Expansion of National Jurisdiction for Prosecuting Serious Crimes under International Law (Antwerp–Oxford: Intersentia, 2005), 115.

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II.2. State Consent as the Foundation of International Criminal Jurisdiction International institutions, be they international organizations or treaty organs, are created by the consent of those states which have subscribed to their constituent instruments; logically, the powers assigned to such institutions by these constituent instruments are also based on this consent.22 It is generally accepted that this tenet of international legal positivism applies to international criminal courts and tribunals, whether international organizations in their own right (e.g. ICC), treaty organs (e.g. International Military Tribunal in Nuremberg (IMT)), or simply subsidiary organs of an international organization (e.g. ICTY, ICTR). International criminal jurisdiction being the court’s power to preside over and adjudicate on an international criminal matter, the States Parties’ consent to the constituent instrument translates to a conferral of jurisdictional power to the respective international criminal court. However, this process alone does not determine the source of the conferred jurisdictional power, as the distinction between individual and collective conferrals introduced by Sarooshi demonstrates:23 collective conferral occurs when a group of states agrees to confer power that they do not possess individually to an international judicial institution (e.g. the jurisdiction of the International Court of Justice (ICJ) to settle inter-state disputes). In this scenario, the collective powers of sovereign states are greater than the sum of each single state’s individual powers.24 In contrast to collective conferrals, Sarooshi labelled it an individual conferral of powers if a state delegates powers to an international institution which it actually possesses in its sovereign sphere. Of course, both collective and individual conferrals of jurisdictional powers must align with the general principles of international law, especially the fundamental pacta tertiis principle (Article 34 of the Vienna Convention on the Law of Treaties (VCLT)). This is where the peculiarities of international criminal jurisdiction become readily apparent: states may collectively agree on the conferral of international jurisdiction over crimes which were previously unknown in domestic and international law—for instance, ‘crimes against future generations’ to give but one example.25 This agreement would negatively affect any third state if its nationals were to fall under the respective international criminal jurisdiction. If, however, a state individually confers to an international body criminal jurisdiction, which the delegating state possesses in its sovereign sphere, it can be argued that third states are not negatively impacted even though their nationals may be affected by this delegation. This only requires two conditions to be met: first, the delegating state’s sovereign right to exercise criminal jurisdiction over foreign nationals is recognized by 22 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Advisory Opinion) [1996] ICJ Rep. 66, 78. 23 Danesh Sarooshi, ‘Conferrals by States of Powers on International Organizations: The Case of Agency’ British Yearbook of International Law 74 (2004): 291, 297–8; see also Viljam Enghölm, Constructing the Power of International Institutions (Leiden: Martinus Nijhoff, 2012), 11; Cormier (n. 9), 60. 24 Sarooshi (n. 23), 297–8. 25 On this subject see Sébastien Jodoin ‘Crimes against Future Generations: Implementing Intergenerational Justice through International Criminal Law’, Intergenerational Justice Review 10 (2010): 10.

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510 kirsten schmalenbach i nternational law (e.g. due to a territorial link) and, second, under international law the state has the sovereign right to delegate this sovereign criminal jurisdiction to the international level. The cumulative presence of these two conditions in cases of international criminal jurisdiction over third-state nationals is at the heart of the academic dispute between Morris and Akande referred to earlier.26 This serves to illustrate that the concept of delegated criminal jurisdiction does not provide unambiguous answers to all the questions concerning the scope of the criminal jurisdiction individually conferred to the respective international criminal court or tribunal (see for the practical implications of the dispute Section III.4 of this chapter on the ICC).

II.3. International Community Mandate as the Foundation of International Criminal Jurisdiction Despite the legal uncertainties attached to the delegation approach discussed earlier, it is at least firmly rooted in the principle of state consent, which is still widely considered indispensable for the international legal order to function well. Consequently, any claim of inherent competences of an international judicial body requires some considerable effort to manifest legal soundness as it seems to emancipate such bodies from their creators, the states, and from any jurisdictional limitations the latter want to impose upon it. Nevertheless, with domestic procedural principles providing a template,27 international jurisprudence has repeatedly endorsed the claim of inherent or incidental jurisdiction when this is required as a direct consequence of any procedure before a court brought about by reason of the matter falling under its primary (or substantive) jurisdiction.28 In this regard, the Nuclear Tests case saw the ICJ hand down a well-known but somewhat contradictory statement: Such inherent jurisdiction . . . derives from the mere existence of the Court as a judicial organ established by the consent of states, and is conferred upon it in order that its basic judicial functions may be safeguarded.29

The claim to inherent jurisdiction on procedural issues (e.g. the right to stay the proceeding,30 to interpret one’s own judgment,31 and to decide on one’s own 26 Morris (n. 6), 50; Akande (n. 11). 27 e.g. Lord Morris in Connelly v Director of Public Prosecution [1964] 2 AC 1254, 1301; Lord Diplock in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp. [1981] 1 All ER 289, 295. 28 Based on a definition used by the Appels Chamber of the Special Tribunal for Lebanon, In the Matter of El Sayed, CH/AC/2010/02, Appeals Chamber, Decision on Appeal of Pre-Trial Judge’s Order regarding Jurisdiction and Standing, 10 November 2010, para. 45; see also Separate Opinion of Judge Gerald Fitzmaurice in Northern Cameroons (Cameroon v UK) (Preliminary Objections) [1993] ICJ Rep. 97, 103. 29 Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep. 253, 259 et seq. 30 Situation in Darfur, In the Case of the Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammad Jerbo Jamus, ICC-02/05–3/09, ICC Trial Chamber IV, 26 October 2012, paras. 74 et seq. 31 European Court of Human Rights, Ringen v Austria (Interpretation), App. No. 2614/65, ECtHR, Judgment of 23 June 1972, para. 13.

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international criminal jurisdiction 511 j urisdiction32) is readily embraced by international criminal courts, especially the ICTY33, the Special Tribunal for Lebanon (STL),34 the Special Court for Sierra Leone (SCSL),35 and the ICC, the latter of which anchors its unwritten judicial powers in Article 4, paragraph 1 of the Rome Statute36 by translating ‘inherent’ as ‘encompassed with other powers specially provided for’.37 Whereas recourse to inherent jurisdiction on procedural matters faces only sporadic criticism of rather rigorous legal positivism,38 it is an entirely different matter to base primary international jurisdiction (i.e. jurisdiction over the merits of a case) on inherent competences. Nevertheless, voices in literature deem international criminal courts such as the ICC prime examples for ‘inherent criminal jurisdiction’,39 a choice of words which requires some conceptual clarification. In the given context, the adjective ‘inherent’ does not indicate primary criminal jurisdiction as a natural attribution intrinsic to the court’s judicial function, rather the court is conceived as exclusively acting as an agent of the international community. This community has an interest in the prosecution of particular grave crimes,40 hence there is an ‘inherent’ bond between the international community and international criminal jurisdiction. This bond was eloquently enunciated by the ICTY in Tadić: The Trial Chamber agrees that in such circumstances, the sovereign rights of states cannot and should not take precedence over the right of the international community to act appropriately as they affect the whole of mankind and shock the conscience of all nationals of the world. There can therefore be no objection to an international tribunal properly constituted trying these crimes on behalf of the international community.41

32 Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, ICTY Appeals Chamber, 2 October 1995, paras. 14–22. 33 Ibid., paras. 14–22. 34 Prosecutor v El-Sayed, Decision on Appeal of Pre-Trial Judge’s Order regarding Jurisdiction and Standing, Case No. CH/AC/2010/02, Special Tribunal for Lebanon, Appeals Chamber, 10 November 2010, paras. 45, 47: ‘The extensive practice of international courts and tribunals to make use of their inherent powers and the lack of any objection by States, non-state actors or other interested parties evince the existence of a general rule of international law granting such inherent jurisdiction.’ 35 Prosecutor v Norman and Others, Decision on Prosecution Appeal Against the Trial Chamber’s Decision of 2 August 2004 Refusing Leave to File an Interlocutory Appeal, Case No. SCSL-04-14-T, Special Court for Sierra Leone, Appeals Chamber, 17 January 2005, para. 32. 36 Situation in Darfur, In the Case of the Prosecutor v Abdallah Banda Abakaer Nourain and Saleh Mohammad Jerbo Jamus, ICC-02/05-03/09, ICC Trial Chamber IV, 26 October 2012, paras. 74 et seq. 37 Situation in the Central African Republic, In the Case of the Prosecutor v Jean Pierre Bemba Combo and Others, ICC-01/05-01/13 A6 A7 A8 A9, ICC Appeals Chamber, 8 March 2018, para. 74. 38 Hugh Thirlway, ‘The Law and Procedures of the International Court of Justice: 1960–1989 Part 9’, British Yearbook of International Law 69 (1999): 1, 4. 39 Inazumi (n. 13), 193; Johan D. van der Vyver, ‘Personal and Territorial Jurisdiction of the International Criminal Court’, Emory International Law Review 14 (2000): 1, 21. 40 Van der Vyver (n. 39), 20 fn. 51 defines ‘inherent jurisdiction’ as the power to hear cases without receiving an express grant or authority, and thus employs an entirely state-centric understanding of the term. 41 Prosecutor v Tadić (n. 32), para. 42.

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512 kirsten schmalenbach Even though this observation was made in the specific context of the ICTY’s primacy over domestic jurisdiction, it mirrors the popular notion that international criminal jurisdiction is exercised on behalf of and in the interest of the international community. From this foundation it is only a small step to argue that criminal jurisdiction is not ‘transferred’ from states (or other actors) to international criminal courts or tribunals but directly bestowed on them by the international community. In support of this concept, Rüdiger Wolfrum42 pointed at Article VI of the 1948 Genocide Convention according to which persons charged with genocide, a crime under international law, shall be tried by a competent domestic criminal court ‘or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’. The language of the provision can indeed be interpreted in such a way that any future international penal tribunal and each individual state party—the latter acting as instruments of decentralized enforcement of the Genocide Convention43—derive their respective distinct jurisdiction from the international community of states, which is the collectivity of States Parties to the Convention.44 This however does not render state consent to the jurisdiction of the international penal tribunal redundant, as Article VI of the 1948 Genocide Convention stresses, nor is state consent construed as a vessel to transfer domestic sovereign powers to that international judicial body. Rather, state consent is viewed as the individual state’s acceptance of the body’s jurisdiction to punish certain international crimes as bestowed on it by the collective of states. The notion that the international community, in its various shapes and forms, directly confers international criminal jurisdiction to a pertinent international judicial body does not automatically open the door to all manner of unwritten—that is, inherent— jurisdictional powers for a body to take cognizance and preside over a wide range of criminal cases. However, the concept does radically influence the interpretation of the written jurisdictional provisions by focusing on the conception of justice directly associated with the international community. Most importantly, it readily overcomes possible legal barriers to the exercise of international jurisdiction which have their origins in States Parties’ constrained domestic criminal jurisdiction (e.g. limitation of jurisdiction ratione loci because of the lease of territory to a non-state party or ratione personae due to amnesty agreements with a non-state party). Then again, the notion of what exactly comprises the international community of states is itself an unwieldy and amorphous one.45 Even if uncertainties regarding the quantitative and qualitative 42 Rüdiger Wolfrum, ‘The Decentralized Prosecution of International Offences through National Courts’, Israel Yearbook of Human Rights 24 (1994): 183, 186. 43 Ibid., 186; for a different interpretation of the Genocide Convention see Gennady M. Danilenko, ‘The Statute of the International Criminal Court and Third States’, Michigan Journal of International Law 21 (2000): 445, 465: the parties agreed that they have a sovereign right to combine their jurisdiction and to cede this jurisdiction to a future international criminal court. 44 See also Attorney General of the Government in Israel v Eichmann, ILR 36 (1961) 12: ‘international law is, in absence of an international Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the crimes to trial. The jurisdiction to try crimes under international law is universal’. 45 Cormier (n. 9), 183.

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international criminal jurisdiction 513 threshold for the aggregated will of states are overcome, there is always the danger of oversimplifying the existence of common objectives.46 These conceptual concerns are somewhat contained in scope by the fact that the described international-community approach to international criminal jurisdiction focuses on a few of the gravest of international crimes universally recognized in international customary law (i.e. war crimes, crimes against humanity, genocide, and arguably the crime of aggression). This specific focus aligns the international-community approach with the concept of universal jurisdiction since both share a common point of departure, namely the collective interest of the international community in effectively ending the impunity of hostis humani generis.47 However, despite this commonality, the notion of individual states having ‘domestic’ universal jurisdiction allocated by and exercised on behalf of the international community by does not necessarily imply that an international body’s criminal jurisdiction over the same crimes share this foundation. This caveat brings us back to the notion of individually conferred (i.e. delegated) jurisdiction, as discussed in Section II.2 of this chapter where it is argued that international criminal jurisdiction has its foundation in states’ domestic universal jurisdiction over international core crimes, which upon the establishment of an international criminal court or tribunal is delegated by these states to such an international judicial body.48 It is then an entirely different matter as to whether or not the statute of the relevant court or tribunal imposes jurisdictional preconditions and limitations ratione materiae, temporis, personae, and loci to be respected by the court when exercising its international criminal jurisdiction.49

III. The Judiciary’s Perspectives III.1. Compétence de la Compétence of International Criminal Courts and Tribunals All these different notions and approaches concerning the proper foundation of international criminal jurisdiction—delegation of domestic criminal jurisdiction, universal jurisdiction, or the international community’s interest in prosecution—are put forward by their proponents and are contested by their opponents with specific 46 Hans Kelsen, Principles of International Law (New York: Rinehart & Co., 1952), 172: Every treaty constitutes a community of States Parties; George Crews McGhee, International Community: A Goal for a New World Order (Lanham: University Press of America, 1992), 37 et seq. 47 Yuval Shany, ‘The Defence of Functional Interpretation of Article 12(3) of the Rome Statute’, Journal of International Criminal Justice 8 (2010): 329, 331 with reference to Hans-Peter Kaul, ‘Precondition to the Exercise of Jurisdiction’, in Antonio Cassese, Paola Gaeta, and John R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court, 3 vols. (Oxford University Press, 2002), I, 587. 48 Van der Vyver (n. 39), 61. 49 Ibid., 61; see also Michael P. Scharf, ‘Opening Address Symposium: Universal Jurisdiction: Myths, Realities and Prospects’, New England Law Review 35 (2001): 233, 239.

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514 kirsten schmalenbach international criminal courts and tribunals in mind. Indeed, one should expect this to be the case as the source of international criminal jurisdiction can only be identified on the basis of each individual judicial body’s constituent instrument as interpreted and applied by the body itself and possibly by other entities competent to do so. This naturally draws attention to the one ‘inherent’ competence all international criminal courts and tribunals claim to possess, namely the power of the court to decide for itself on the existence and scope of its own jurisdiction—in short, its compétence de la compétence.50 The ICC considers the power of self-affirmation to be enshrined in Article 19, paragraph 1 of the Rome Statute, which requires the Court to satisfy itself that it has jurisdiction in all cases before it.51 With their statutes being silent on the matter, the ICTY Appeals Chamber52 and the STL53 characterized their competence to do so as a ‘well-entrenched principle of general international law’. This self-appraisal, which has not been a source of noticeable protests from states,54 gains explosive force if the compétence de la compétence amounts to a court’s right to assess the legality of its own criminal jurisdiction under international law. While the STL considered this a bridge too far,55 the ICTY56, and in its wake the SCSL,57 deemed the self-assignment of the competence necessary for the purpose of ascertaining their primary jurisdiction over the international offences before them. It is the above right of jurisdictional self-affirmation that makes the judgments and decisions of international criminal courts and tribunals the natural starting point for reflections on the possible foundations of their respective international criminal jurisdiction.

III.2. International Criminal Tribunals Established by Occupying Powers: International Military Tribunals of Nuremberg and Tokyo Despite its institutional peculiarities, the IMT is widely considered the first i nternational criminal tribunal in world history. Given the time and circumstances of its creation, it 50 Jessica Liang, ‘The Inherent Jurisdiction and Inherent Powers of International Criminal Courts and Tribunals: An Appraisal of their Application’, North Carolina Law Review 15 (2012): 375, 402. 51 Prosecutor v Kony, Decision on the admissibility of the case under Article 19(1) of the Statute, ICC– 02/04–01/05–377, ICC Pre-Trial Chamber II, 10 March 2009, para. 45; a more general approach is taken by Decision on the Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute (Myanmar case), ICC-RoC46(3)-01/18, ICC Pre-Trial Chamber I,6 September 2018, paras. 30–3. 52 Prosecutor v Tadić (n. 32), para. 19. 53 Prosecutor v El-Sayed (n. 34), para. 43. 54 Ibid., para. 47. 55 Ayyash and Others, Decision on the Defence Appeals against the Trial Chamber’s Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, STL-11-O1/PT/AC/AR90.1, Special Tribunal for Lebanon, Appeals Chamber, 24 October 2012, paras. 41–4. 56 Prosecutor v Tadić (n. 32), para. 20. 57 Prosecutor v Kallon, Constitutionality and Lack of Jurisdiction, Case No. SCSL-2004-15-AR72(E) et al, Special Court for Sierra Leone, Appeals Chamber, 13 March 2004, paras. 34–7.

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international criminal jurisdiction 515 necessarily had a greater focus on pressing issues such as the verification of elements of international crimes rather than ascertaining the foundation of its own criminal jurisdiction. The IMT somewhat fleetingly pointed to its constituent instrument, the IMT Charter, which it deemed to manifest ‘the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories had been recognized by the civilized world’.58 The IMT evidently considered the source of its criminal jurisdiction to be the right of each Allied Power to legislate and administer justice in its respective occupied territory as acquired by their effective and exclusive military rule over that territory. The four major Allied nations then legally combined their separate powers to legislate and to adjudicate by signing the 1945 London Agreement to which the IMT Charter was annexed.59 It was the Allies’ reliance on international law which, according to the IMT, distinguished this exercise of prosecutorial power from a case of the victors arbitrarily meting out punishment to the vanquished: ‘(The Charter) is the expression of international law existing at the time of (the Tribunal’s) creation; and to that extent is itself a contribution to international law.’60 The US Chief Prosecutor, Associate Justice of the Supreme Court Robert H. Jackson, also made a point of emphasizing in his opening statement that the law embodied in the IMT Charter may be applied in the given proceedings to German aggressors but should—in another place and time—apply equally to aggressions of other nations.61 The IMT’s reasoning to anchor its jurisdiction in the combined authority of the four occupying powers is quite understandable; however, when considered in its historical context this anchor is not as solid as it first appears. From the 1943 Moscow Declaration it is clear that the Allies considered domestic territorial jurisdiction the most important basis for the prosecution of crimes committed by Nazi Germany: each liberated country was to judge under its own jurisdiction those accused of crimes committed in its territory; only the offences of major war criminals whose actions had no particular geographical localization should be judged by a special tribunal.62 Even though the 1945 London 58 IMT, Judgment and Sentences, 1 October 1946, American Journal of International Law 41 (1947): 172, 216; famously, the Tribunal added: ‘In doing so, [the Signatory Powers] have done together what any one of them might have done singly.’ Three years later, this reasoning was reinterpreted by the UN SecretaryGeneral: ‘the Court affirmed that the signatory Powers in creating the Tribunal had made use of a right belonging to any nation’: UNGA ‘The Charter and Judgment of the Nuremberg Tribunal—History and Analysis: Memorandum Submitted by the Secretary-General’ (1949) UN Doc. A/CN.4/5, 79 et seq.; on the question of whether the Nuremberg Military Tribunal based on Control Council Law No. 10 and Ordinance No. 7 were international or national tribunals, see Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford University Press, 2011), 107 et seq. 59 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (entered into force on 8 August 1945) 82 UNTS 280 (London Agreement). 60 IMT, Judgment and Sentences (n. 58), 216. 61 US Chief Prosecutor Robert H. Jackson, Opening Statement on 21 November 1945, reprinted in Office of the United States, Chief of Counsel for Prosecution of Axis Criminality, 5 vols. (Washington, DC: United States Government Printing Office, 1946), I, 114. 62 First Moscow Conference, Declaration on Atrocities of 1 November 1943, https://www.cvce.eu/ content/publication/2004/2/12/699fc03f-19a1-47f0-aec0-73220489efcd/publishable_en.pdf.

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516 kirsten schmalenbach Agreement re-emphasized the divided responsibility for administering c riminal justice between national and occupation courts on the one hand and the IMT on the other hand (Articles 4 and 6 of the London Agreement), the IMT’s jurisdiction was in practice not constrained by any factors involving geography.63 With regard to the nationality of the accused, the London Agreement recites in its preamble the language of the Moscow Declaration that accentuated German atrocities in occupied Europe, but then broadens in Article 6 of the IMT Charter the Tribunal’s jurisdiction ratione personae to ‘major war criminals of the European Axis countries (and) persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations’. Proceeding from the IMT’s reasoning that the Tribunal’s international criminal jurisdiction stems primarily from the combined powers of the four occupying Allies, it is striking that the IMT’s jurisdictional reach was not confined by the London Agreement to just German nationals or even to crimes committed by non-Germans solely on German territory—that is, undisputed pillars of the German ‘domestic’ criminal jurisdiction before the unconditional surrender and military occupation.64 The Allies’ rather far-reaching prescriptive and adjudicative criminal jurisdiction embodied in the IMT Charter seems most readily justifiable in the context of international war crimes since, as was commonly held at the time, international law recognized the belligerent’s right to prosecute members of the enemy forces irrespective of where the war crimes were committed.65 Likewise, jurisdiction to punish crimes against peace—whether it be a new construct or not66—can be theoretically linked to the fact that the Allies were the ones who were attacked by the Axis in violation of international law. The emphasis on the belligerent’s scope of jurisdiction would have been more difficult to maintain with respect to crimes against humanity if the IMT had not stressed and accepted the existence of a ‘war nexus’67 that rendered these crimes as heinously opportunistic acts made possible by the war.68 This ubiquitous ‘war nexus’ is arguably the reason why contemporary w riters saw no need to support the inter-Allies jurisdiction with the PCIJ’s Lotus doctrine,69 whereby a prohibitive international rule is required to limit the sovereign right of a state to exercise such criminal jurisdiction.70 This aside, the IMT’s 63 Maria Chiara Malaguti, ‘Can the Nuremberg Legacy Serve any Purpose in Understanding the Modern Concept of Complementarity’, in Mauro Politi and Frederica Gioia (eds.), The International Criminal Court and National Jurisdictions (Abingdon: Routledge Chapman Hall, 2008), 116. 64 Germany never consented to the London Agreement: Franz B. Schick, ‘Crimes Against Peace’, Journal of Criminal Law and Criminology 38 (1948): 445, 452. 65 American Bar Association, ‘Proceedings of the Section of International and Comparative Law’, American Journal of International Law 37 (1943): 663, 665, para. 5; United States v List and Others, Hostage Trial, Judgement, 19 February 1948, Law Reports of Trials of War Criminal Vol. VIII (United Nations War Crimes Commission 1949), 54 et seq.; see also George A. Finch, ‘The Nuremberg Trial and International Law’, American Journal of International Law 41 (1947): 20, 21. 66 On the issue see Schick (n. 64), 445 et seq. 67 IMT, Judgment and Sentences (n. 58), 249. 68 Egon Schwelb, ‘Crimes Against Humanity’, British Yearbook of International Law 23 (1946): 178, 206. 69 SS Lotus (France v Turkey) (Judgment) [1927] PCIJ Series A, No. 10. 70 But see for modern writers’ reference to Lotus: William B. Simons, ‘The Jurisdictional Bases of the International Military Tribunal at Nuremberg’, in George Ginsburgs and Vladimir N. Kudriavtsev (eds.), The Nuremberg Trial and International Law (Leiden: Nartinus Nijhoff Publishers, 1990), 45.

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international criminal jurisdiction 517 criminal jurisdiction operated within the special legal framework that international law and customs provide for all belligerents, which extended to the victors and naturally included the four occupying powers.71 With that in mind, an interesting adjunct at this point is with regard to the IMT for the Far East, established at the behest of the commander in chief of US Army Forces in the Pacific, General Douglas McArthur. Following in the footsteps of the IMT in Nuremberg, the IMT in Tokyo considered the basis of its jurisdiction that of the Allies’ Powers over occupied Japan, conferred by them to the Supreme Commander who then unilaterally enacted the Tribunals Charter; furthermore, the Tribunal stressed that the Allied Powers’ belligerent rights to create tribunals to punish war criminals exist only within the limits of international law.72 In support of both IMTs jurisdictional reasoning, it is rather evident that towards the end of the war in Europe and the Far East the Allied Powers planned to enforce the internationally accepted jurisdictional rights of an aggressively attacked belligerent, even more so as their vision of post-war justice was supported by a growing number of allied states: both the 1943 Moscow Declaration and the 1945 London Agreement stressed that the four major Allied Powers acted ‘in the interest of the United Nations’73 and that these ‘United Nations’ had made declarations of their intention that war criminals would be brought to justice.74 It can certainly be seen that in these likeminded and hence united nations—altogether forty-seven states aligned to the 1942 ‘Declaration by United Nations’75—lay the embryonic foundation for the subsequent establishment of its namesake organization in San Francisco in October 1945. However, it is equally clear that the wartime ‘United Nations’ evoked in both the 1943 Moscow Declaration and 1945 London Agreement represented states that had stood united in their war efforts against the Rome–Berlin–Tokyo Axis, making them above all a community of wartime allies. Notably, only nineteen of them formally adhered to the 1945 London Agreement and its annexed IMT Charter. While contemporary writers willingly embraced the rights of the allied belligerents and the combined authority of the occupying powers as the proper jurisdictional source of the IMT,76 over time the omnipresent references to the ‘United Nations’ metamorphosed into the notion that the IMT’s criminal jurisdiction was tied to a broader ‘World Community.’77 Robert Woertzel argued in 1962 that the IMT was more 71 Misleading in this respect IMT, Judgment and Sentences (n. 58), 216: ‘The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the Trial . . . for it is not to be doubted that any nation has the right to set up special courts to administer law.’ (Emphasis added.) 72 IMT for the Far East, Judgment of 4 November 1948, International Law Studies Series. US Naval War College 46 (1948–9): 76 et seq. (excerpts). 73 Preamble of the London Agreement and the 1943 Moscow Declaration (‘In the interest of the thirty-two United Nations’). 74 Preamble of the London Agreement. 75 See UNGA, ‘The Declaration by United Nations’, United Nations Yearbook (1946–7): 1. 76 Max Radin, ‘Justice at Nuremberg’, Foreign Affairs 24 (1946): 369, 370; George Schwarzenberger, ‘The Judgment of Nuremberg’, Tulane Law Review 21 (1947): 329, 331. 77 Simons (n. 70), 52.

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518 kirsten schmalenbach than an international tribunal in a literal sense (i.e. established by international agreement) but rather in a true sense since it was instituted by a group of nations with the consent and approval of a wider international community.78 International approval of the Tribunal’s work is indeed beyond doubt: on 11 December 1946, two months after the IMT issued its judgment at Nuremberg, fifty-one states in the UN General Assembly unanimously adopted Resolution 95(1), which affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal (‘the Nuremberg principles’). Legally, the international approval of substantive international criminal law that materialized through the IMT judgment does not necessarily impact the Tribunal’s original jurisdictional base. Having said that, if the Nuremberg Principles are to mark the birth of customary international criminal law it is, for legal authority purposes, essential that the Tribunal outgrew the jurisdictional claim stemming from victorious sovereign belligerents to become a universally accepted mouthpiece of the wider international community assembled in the newly established United Nations Organization.

III.3. International Criminal Tribunals Established by the UN Security Council: ICTY, ICTR, and STL Forty-seven years after the Nuremberg tribunal completed its mandate, the UN Security Council (UNSC) unanimously adopted Resolution 827 (1993),79 establishing a subsidiary organ in the ICTY. This was followed by the ICTR in 1994.80 As in Nuremberg, the ‘routine defence’81 the defendants adopted was to question the legality and the jurisdiction of the international tribunal, which gave the ICTY Appeals Chamber in Tadić the opportunity to authoritatively clarify the source of its jurisdiction: The Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of the maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia.82 78 Robert K. Woetzel, The Nuremberg Trials and International Law (London–New York: Stevens and Sons, 1962), 49. 79 UNSC Res. 827 (25 May 1993) UN Doc. S/RES/827. 80 UNSC Res. 955 (8 November 1994) UN Doc. S/RES/955. 81 Mia Swart, ‘Tadic Revisited: Some Critical Comments on the Legacy and the Legitimacy of the ICTY’, Goettingen Journal of International Law 3 (2011): 985, 1002. 82 Prosecutor v Tadić (n. 32), para. 38; see also Prosecutor v Milosevic, Decision on Preliminary Motions, IT-02–54, Appeals Chamber, 8 November 2001, para. 3; these decisions are in line with the perception of the UN Secretary-General at a time when there was much debate as to which legal basis should be used to establish the Tribunal for the former Yugoslavia. In the report drawn up pursuant to Resolution 808 (1993), he maintained that ‘the International Tribunal should be established by a decision of the Security Council on the basis of Chapter VII of the Charter of the United Nations’ and that such a decision would constitute ‘a measure to maintain or restore international peace and security following the requisite determination of the existence of a threat to the peace’: see UNSC ‘Report of the

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international criminal jurisdiction 519 By firmly binding the creation and jurisdiction of the ICTY with the Security Council’s enforcement powers under Chapter VII, specifically Article 39 in conjunction with Articles 41 and 42 of the UN Charter, the Appeals Tribunal could not but address the jurisdictional link between the Security Council, the executive organ of the UN, and its judicial subsidiary. The rejection of the idea that the Security Council can only bestow upon its subsidiary organ competences that the Council as the principal organ possesses—in the eyes of the Appeal Chamber a fundamental misunderstanding of the constitutional set-up of the Charter—is at the heart of the Tadić decision: with reference to the ICJ’s Effect of Award opinion,83 the Appeal Chamber noted that the specific function of the principal organ, conferred upon it by the constituent instrument, is the decisive component when determining what kind of subsidiary organ can serve this function best while the appropriateness of the choice is to be decided exclusively by the principle organ.84 The Tadić ruling on the source of the ICTY’s international criminal jurisdiction has been echoed not only by the ICTR85 but also the STL.86 As seemingly clear and sound as the Tadić ruling is, the ICTY’s rather enigmatic statement that ‘(t)he establishment of the (ICTY) by the Security Council does not signify . . . that the Security Council has delegated to it some of its own functions or the exercise of some of its own powers’ requires some explanation. All of the judicial sentences passed by ICTY and the ICTR are coercive not only vis-à-vis the convicted but also vis-à-vis all UN Member States, the latter being not only bound to cooperate with the Tribunal but also obliged to recognize all verdicts as legally existing (ne bis in idem), enforceable, and—as the case may be—fully served.87 That is why the constitutional power of the principal organ to legally bind the addressees of its measures is indispensable for the establishment of an international criminal tribunal acting as a subsidiary, not only for its constitutionality under the UN Charter but also for its legality under the fair trial guarantee (Article 14 of the International Covenant on Civil and Political Rights: ‘tribunal established by law’).88 Accordingly, the scenario that the international community transfers international criminal jurisdiction through the General Assembly to a subsidiary judicial organ (Article 22 of the UN Charter), as it is occasionally floated in the context of the Syrian conflict, is unfounded. While the plenary organ of the United Nations is undoubtedly the appropriate body to give the international community a Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993)’ (3 May 1993) UN Doc. S/25704, para. 22. 83 Effect of Awards of Compensation (n. 15), 61. 84 Prosecutor v Tadić (n. 32), para. 39. 85 Prosecutor v Kanyabashi, Decision on Jurisdiction, Case No ICTR-96-15-T, ICTR Trial Chamber, 18 June 1997, para 12. 86 Ayyash and Others, Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, STL-11–01/PT/TC, Trial Chamber, 27 July 2012; Ayyash and Others, Decision on the Defence Appeals against the Trial Chamber’s ‘Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal’, STL-11-O1/PT/AC/AR90.1, Appeals Chamber, 24 October 2012, paras. 24–31. 87 Cf. Lara A. Ballard, ‘The Recognition and Enforcement of International Criminal Court Judgments in U.S. Courts’, Columbia Human Rights Law Review 29 (1997): 143, 145 et seq. 88 Prosecutor v Tadić (n. 32), paras. 44, 47.

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520 kirsten schmalenbach voice,89 the UN Charter denies the General Assembly any power to impose explicit obligations of compliance on Member States in the field of peace and security.90 Since this is not the case for the Security Council (Article 25 of the UN Charter), the duty of Member States to recognize and respect the legal force of the sentences passed by the ICTY and ICTR stems directly from UNSC Resolutions 827 and 955; it can be further considered a matter of delegated powers that both tribunals had the right to issue binding orders to UN Member States.91 What has not been transferred from the Security Council to the tribunals though are the tribunals’ supranational powers vis-à-vis the accused and their international criminal jurisdiction, neither of which are inherent to the Security Council but have been created by it in the exercise of its Chapter VII functions and powers for the purpose of criminal prosecution. While it has been occasionally argued that the actual legal basis for the establishment of the ICTY—and therefore the source of its jurisdiction—is found in the common tacit consent of the international community,92 the ICTY Appeals Chamber in Tadić made it plain that the role of the international community—namely, the collectivity of UN Member States—in the creation of the Tribunal was the basic decision in 1945 to entrust the Security Council with far-reaching powers to maintain international peace and security.93 At this point it is worth noting that when exercising its mandate to promote peace and security, the Security Council is not required to establish international criminal jurisdiction over crimes the prosecution of which the international community as a whole takes a special interest in (i.e. war crimes, crimes against humanity, genocide, and the crime of aggression). As a case in point, the STL illustrates the various forms international criminal jurisdiction can take when employed by the Security Council; for Lebanon, the Security Council created a hybrid court featuring both national and international elements.94 Since an impasse in the Lebanese ratification process prevented a treaty-based STL, the Security Council used its Chapter VII powers to create and mandate the STL for the prosecution of those involved in the terrorist attack that killed the former Lebanese 89 Ibid., third subpara. of para. 44. 90 Certain Expenses of the United Nations (Article 17 paragraph 2, of the Charter) (Advisory Opinion) [1962] ICJ Rep. 151, 163–6; in contrast, the right of the General Assembly to establish an Administrative Tribunal stems from its legislative powers regarding staff matters, Effect of Awards of Compensation (n. 15), 61. 91 See Art. 29 of the ICTY Statute and Art. 28 of the ICTR Statute; cf. also Prosecutor v Tihomir Blaškić, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Camber II of 18 July 1997, IT-95-14-AR108 bis, Appeals Chamber, 29 October 1997; on the issue of transferral see Erica de Wet, The Chapter VII Powers of the Security Council (Oxford: Hart Publisher, 2004), 342; Danesh Sarooshi, ‘The Powers of the United Nations International Criminal Tribunals’, Max Planck Yearbook of United Nations Law 2 (1998): 141, 148. 92 Maria Chiara Vitucci, Il tribunale ad hoc per la ex Jugoslavia e il consenso degli Stati (Milan: A. Giuffrè, 1998), 28. 93 See also for the STL, the separate and partially dissenting opinion of Judge Baragwanath, Prosecutor v Ayyash and Other, Decision on the Defence Appeals Against the Trial Chamber’s Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal, STL-ll-OIIPT/AC/AR90.1, 26, para. 32. 94 Frédéric Mégret, ‘A Special Tribunal for Lebanon: The UN Security Council and the Emancipation of International Criminal Justice’, Leiden Journal of International Law 2 (2008): 485, 505.

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international criminal jurisdiction 521 Prime Minister Rafiq Hariri and twenty-one others on the basis of the Lebanese Criminal Code.95 Even though the STL Appeals Chamber reinterpreted and expanded the relevant domestic provision with reference to a ‘crime of terrorism’ under international customary law,96 a judicial move heavily criticized in literature,97 the STL’s jurisdiction ratione materiae as stipulated in UNSC Resolution 1757 (2006) illustrates the Security Council’s broad discretion when creating and organizing international bodies with criminal jurisdiction. Having said that, even the broadest discretion has its limits; certainly not in terms of conflicting state sovereignty or qualified domestic jurisdiction, but from the accused’s human rights perspective with the principle nullum crime sine lege in the fore.98

III.4. International Criminal Tribunals Established by a Bilateral Treaty with the UN: SCSL Whereas the plan to set up a criminal tribunal on the basis of a bilateral agreement between the UN and the state which sought international justice failed in Lebanon, it had actually succeeded four years earlier in Sierra Leone. In Resolution 1315 (2000), the Security Council requested the Secretary General ‘to negotiate an agreement with the Government of Sierra Leone to create an independent special court’.99 With the Security Council remaining actively involved in the process, the Secretary-General drafted the agreement which finally entered into force in 2002.100 Just as with the STL, the SCSL belonged to the family of hybrid courts, not only because of its mixed national– international bench but—more importantly—because of its nationalized international jurisdiction covering both crimes under international law and the Sierra Leonean penal code.101 Endowed with international legal personality, the court’s self-confident approach was made manifest when it produced a series of informative decisions on the 95 UNSC Res. 1664 (29 March 2006) UN Doc. S/RES/1664 (2006); and UNSC Res. 1757 (30 May 2007) UN Doc. S/RES/1757. 96 Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I, Special Tribunal for Lebanon, Appeals Chamber, 16 February 2011, para. 46. 97 Ben Saul, ‘Legislating from a Radical Hague: The UN Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism’, Leiden Journal of International Law 24 (2011): 677, 680 et seq.; Kai Ambos, ‘Judicial Creativity at the Special Tribunal for Lebanon: Is there a Crime of Terrorism under International Law’, Leiden Journal of International Law 24 (2011): 655, 665. 98 Thomas Rauter, Judicial Practice, Customary International Criminal Law and Nullum Crime Sine Lege (Heidelberg: Springer, 2017), 36. 99 UNSC Res. 1315 (14 August 2000) UN Doc. S/RES/1315; the Secretary-General referred to it as a ‘treatybased sui generis court of mixed jurisdiction and composition’, see UNSC ‘Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone’ (4 October 2000) UN Doc. S/2000/915, para. 9. 100 Agreement between the United Nations and the Government of Sierra Leone on the establishment of a Special Court for Sierra Leone of 16 January 2002, 2178 UNTS 137. 101 Charles Chernor Jalloh, ‘The Contribution of the Special Court for Sierra Leone to the Development of International Law’, African Journal of International and Comparative Law 15 (2007): 165, 166 fn. 10, prefers the label ‘nationalized international court’.

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522 kirsten schmalenbach source of its jurisdiction: after the SCSL ruled out being a Chapter VII-subsidiary organ of the Security Council as was the case with the ICTY and ICTR,102 it had to decide whether or not Sierra Leone’s ratification of the bilateral agreement with the UN transferred its sovereign territorial and personal criminal jurisdiction to the SCSL. This question was most pressing not only because the defendants kept challenging the validity of the UN–Sierra Leone Agreement, but also because Sierra Leone had guaranteed amnesties in the Lomé Peace Accord concluded with the Revolutionary United Front.103 In a strong rebuttal of both lines of argument the Appeals Chamber held in Gbao stated that: The establishment of the Special Court did not involve a transfer of jurisdiction or sovereignty by Sierra Leone. The Special Court is a completely new organisation established by an international treaty. It does not operate on the basis of transferred jurisdiction but is a new jurisdiction operating in the sphere of international law.104

Two weeks previously, the Appeals Chamber had crafted a different rationale for dismissing the relevance of the Lomé Accord amnesty: in Kallon and Others, the Appeals Chamber found that although amnesties for grave international crimes may be legal under international law, they do not constitute a legal bar to prosecution by another state or—most importantly—by an international criminal court provided that universal jurisdiction allows for the trial of these crimes.105 Combining the rationales of the two decisions, it is evident that the SCSL not only detaches its international criminal jurisdiction from Sierra Leonean sovereign jurisdiction, it also qualifies its distinct international criminal jurisdiction over grave crimes (Arts 2–4 of its Statute) as universal in scope. The effect of these two qualifications is that the SCSL, acting as an i nternational organization106 with distinct supranational judicial powers, is neither confined by any limits to Sierra Leone’s criminal jurisdiction nor must it recognize and respect Sierra Leone’s sovereign decision to grant amnesties for international crimes. The question which then arises is as to whether the universal jurisdiction of the SCSL over the crimes in Arts 2–4 of its Statute was conferred to it by the international community acting through the UN or whether it was an inherent consequence of the nature of these grave 102 Prosecutor v Moinina Fofana, Case No. SCSL-2004-14-AR72(E), Appeals Chamber, 25 May 2004, para. 21: ‘There is no reason why the Security Council could not have stablished an international criminal tribunal in a non-coercive way.’ 103 Art. IX of the Lomé Peace Agreement, reprinted in UNSC ‘Letter to the President of the Security Council’ (12 July 1999) UN Doc. S/1999/777. 104 Prosecutor v Gbao, Case No. SCSL-2004-15-AR72(E), Decision on Preliminary Motion on the Invalidity of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court, Appeals Chamber, 25 May 2004, para. 6. 105 Prosecutor v Kallon and Kamara, Case Nos. SCSL-2004-15-AR72(E) and SCSL-2004-16-AR72(E), Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Appeals Chamber, 13 March 2004, paras. 71 et seq. 106 Prosecutor v Charles Ghankay Taylor, Case No. SCSL-2003-01-I, Appeals Chamber 31 May 2004, para. 41 with reference to Sands, Amicus curiae Submission to the Special Court for Sierra Leone, para. 118: ‘The Special Court is established b treaty and has the characteristics associated with classical international organisations.’

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international criminal jurisdiction 523 crimes.107 The Appeal Chamber decision on the immunity of Charles Tayler, former head of state of Sierra Leon’s neighbour Liberia, indicates the Court’s approach: It is observed that in carrying out its duties under its responsibility for the maintenance of international peace and security, the Security Council acts on behalf of the members of the United Nations. The Agreement between the United Nations and Sierra Leone is thus an agreement between all members of the United Nations and Sierra Leone. This fact makes the Agreement an expression of the will of the international community.108

Leaving aside the highly disputable gambit of symbolically piercing the UN’s distinct legal personality as a contracting party, the SCSL manifestly considered the ultimate source of its universal criminal jurisdiction the international community. More specifically, the international community of UN Member States conferred upon the Security Council the international peace and security function, and the exercise thereof led to the conclusion of the UN–Sierra Leone Agreement.109 However, what the international community did not bestow on the SCSL was the power to legally oblige UN Member States other than Sierra Leone to cooperate with the Court (e.g. to extradite a suspect), which according to the Appeals Chamber in Taylor required Chapter VIIbacking that the SCSL did not have. Even though the SCSL did not accept the sovereign immunity claims of Liberia’s former Head of State for the reason of its international judicial character alone,110 it recognized the sovereign right of Ghana to refuse cooperation by not extraditing a suspect to the SCSL.111 It is this latter event that reveals a significant conceptual weakness in the international-community approach to the SCSL’s international criminal jurisdiction: it utilizes the legal fiction that the international community has a common interest in international criminal justice, without completely breaking away from international principles such as sovereignty and state consent, which ultimately allows individual members of this very community to obstruct the court’s work out of sovereign self-interest.

III.5. International Criminal Tribunals Established by a Multinational National Treaty: The International Criminal Court Based on a treaty just as is the case with the SCSL, but without the UN joining the current 123 States Parties of the ICC,112 it is not unreasonable to view the ICC as the acting agent of the international community: in its preamble, the Rome Statute affirms that the 107 Sarah Williams, Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues (Oxford: Hart Publishing, 2012), 315. 108 Prosecutor v Taylor (n. 106), para. 38. 109 Ibid., para. 51. 110 Ibid., para. 52. 111 Ibid., para. 57. 112 As of October 2018.

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524 kirsten schmalenbach crimes under the ICC’s jurisdiction are ‘the most serious crimes of concern to the international community as a whole’;113 further, Article 12, paragraph 1 of the Rome Statute stresses that a state ‘accepts’ the jurisdiction of the Court by becoming a party to the Statute, a choice of words that indicates an international jurisdictional title to jurisdiction independent of that of states (cf. the discussion of inherent jurisdiction at Section II.2 of this chapter). As far as Security Council action under Chapter VII of the UN Charter triggers the ICC’s jurisdiction (Article 13(b) of the Rome Statute), the international community has entrusted the Security Council with the mandate to promote international peace and security through the ICC, which then enjoys (almost) universal jurisdictional reach across all UN Member States. However, for State Party and Prosecutor referrals (Article 13(a) and (b) of the Rome Statute) another justification for the ICC’s international criminal jurisdiction seems to prevail. Since its initial proceedings in 2006 with the Lubanga trial, some thirteen years ago, the judicial divisions of the ICC have never explicitly addressed the question of whether or not the ICC’s criminal jurisdiction enshrined in the Rome Statute is entirely distinct and independent from that of its States Parties. However, on 20 November 2017 the Office of the Prosecutor requested from Pre-Trial Chamber III authorization for an investigation into alleged crimes committed in Afghanistan, in the context of which it dealt with the origin of the ICC’s international criminal jurisdiction in one single sentence: ‘(T)he conferral or delegation of jurisdiction by a party to a treaty to an international jurisdiction in itself (is not) novel, this already having been the basis for the establishment of the Nuremberg Tribunal.’114 The Office of the Prosecutor was compelled to explain the origin of ICC jurisdiction because the situation in Afghanistan could be the first in ICC history which will generate criminal proceedings against nationals of a non-State Party (i.e. the United States), and hence requires justification as to why these nationals would fall within the ICC’s jurisdictional reach. The Prosecutor’s rather brief offering of mixed terminology (conferral/delegation) gains clarity through its reference to the Nuremberg Tribunal and puts the statement in line with the prevailing opinion of legal scholarship:115 the domestic jurisdictional title of each state is the basis of the State Party’s sovereign decision to delegate this individual power and combine it with others to a treaty-based international criminal jurisdiction which is the ICC. Considered from an international perspective, the source of the ICC’s international 113 Fourth recital of the Rome Statute. 114 Situation in the Islamic Republic of Afghanistan, Request for Authorisation of an Investigation Pursuant to Article 15, ICC.02/17, Office of the Prosecutor, 20 November 2017, para. 45 (footnotes omitted). 115 Akande (n. 11), 621; Yuval Shany, ‘In Defence of Functional Interpretation of Article 12(3) of the Rome Statute’, Journal of International Criminal Justice 8 (2010): 329, 333; Frédéric Mégret, ‘Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution of International Law’, European Journal of International Law 12 (2001): 247, 251; Michael P. Scharf, ‘The ICC's Jurisdiction over the Nationals of Non-Party States: A Critique of the US Position’, Law and Contemporary Problems 64 (2001): 67, 67; Gerhard Hafner et al., ‘A Response to the American View as Presented by Ruth Wedgwood’, European Journal of International Law 10 (1999): 108, 217; for the international community approach see Inazumi (n. 13), 191.

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international criminal jurisdiction 525 criminal jurisdiction is the Rome Statute, a multilateral treaty, which by act of ratification is supplied by States Parties’ domestic criminal jurisdiction linked to territory and nationality. The Office of the Prosecutor did not go so far as to claim an individual transfer of universal jurisdiction over war crimes, crimes against humanity, and genocide to the ICC, the exercise of which is then narrowed down ratione loci and personae, respectively, by Article 12, paragraph 2 of the Rome Statute. An explicit claim to that end would be difficult to justify in the light of the 1998 travaux preparatoires in Rome, where the majority of negotiating states were anxious to prevent the very notion of transferred universal jurisdiction as proposed by Germany.116 However, it is interesting to note that the Prosecutor considered the Rome Statute in line with a wealth of multilateral treaties that bestow universal jurisdiction upon its States Parties, noting that ‘(t)hose treaty regimes do not exclude nationals of States that are not parties to the relevant treaty. Indeed, such crimes attract universal opprobrium and thus demand repression by each of the members of the international community on behalf of the whole.’ Of course, if universal jurisdiction is not delegated by the States Parties to the ICC but only the title to territorial and personal jurisdiction (Article 12, paragraph 2(a) and (b) of the Rome State), the idea of delegation is precarious, at least from the perspective of international criminal justice: it remains unclear whether or not any kinds of limitations at the domestic level have an impact on the international criminal jurisdiction exercised by the ICC. In the case of Afghanistan, the transitional government concluded in 2002/3 an agreement on the status of military and civilian personnel of the US Department of Defense present in Afghanistan.117 On the basis of this agreement the Afghan government granted the US government the exclusive right to exercise criminal jurisdiction in Afghanistan over US personnel.118 The Office of the Prosecutor however rejected the idea that this agreement, which entered into force three months after Afghanistan became an ICC State Party in February 2003, could in any way affect the ICC’s jurisdiction: the Office of the Prosecutor stated that the sovereign decision of the territorial state or state of nationality to not exercise enforcement jurisdiction could not ‘extinguish the state’s prescriptive and adjudicative jurisdiction, which serves as inherent attribution of state sovereignty’.119 From that reasoning it can be concluded that in the Prosecutor’s opinion, the territorial and personal jurisdiction delegated to the ICC is never a reflection of the scope of jurisdiction the individual state party is allowed and able to exercise; rather, the individually conferred title to territorial and personal jurisdiction rests in the State Party’s inherent sovereignty and as such aggregates on the international level to the ICC’s international criminal jurisdiction. Consequently, legal or factual limitations—for example, effectuated by international or domestic amnesties, 116 William A. Schabas and Guilia Pecorella in Otto Triffterer and Kai Ambos (eds.), The Rome Statute of the International Court of Justice: A Commentary, 3rd edn (Munich: C. H. Beck, 2016), Art. 12, paras. 6–12. 117 Exchange of Notes September 26 and December 12, 2002 and May 28, 2003; entered into force 28 May 2003, State Department No. 03–67, 2003 WL 2175431. 118 Rain Liivoha, Criminal Jurisdiction over Armed Forces Abroad (Cambridge University Press, 2017), 162. 119 Situation in the Islamic Republic of Afghanistan (n. 114), para. 46 fn. 47 with reference to the academic debate.

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526 kirsten schmalenbach lease agreements granting complete jurisdiction and control over territory, status of forces agreements granting exclusive jurisdiction over persons or military occupations— cannot affect the ICC’s international criminal jurisdiction; on the contrary, these limitations indicate that the State Party concerned is not willing or able to prosecute relevant crimes domestically, which naturally then paves the way under the complementarity principle for the ICC to exercise its jurisdiction in any given cases (Article 17 of the Rome Statute).120 Even though in the Afghanistan case, the Pre-Trial Chamber II rather focused on other issues than the foundation of its Article 12-jurisdiction,121 the Myanmar case indicates that the Court shares the Prosecutor’s approach. Here, the Office of Prosecutor request Pre-Trial Chamber I to rule on the Court’s jurisdiction over the alleged deportation of ethnic Rohingya from Myanmar, a non-State Party, to Bangladesh, which is an ICC State Party. In verifying the Court’s jurisdiction, Pre-Trial Chamber I took the delegation-of-jurisdiction approach by stating: ‘(T)he drafters of the ICC Statute intend to allow the Court to exercise its jurisdiction pursuant to article 12(2)(a) of the Statute in the same circumstances in which State Parties would be allowed to assert jurisdiction over such crimes under their legal systems, within the confines imposed by international law and the Statute.’122 Most notably, the Pre-Trial Chamber abstained from explicitly referring to the scope of Bangladesh’s territorial jurisdiction, being the host state of the Rohingya refugees, over the perpetrators of the acts of deportation. Instead, the Chamber pointed at the internationally recognized territorial jurisdiction every ICC State Party has by virtue of its territorial sovereignty. Taking the sovereign jurisdiction of States Parties over their respective territory (and nationals) as the conceptual basis of ICC’s criminal jurisdiction is strategically wise on many levels: it remains firmly rooted in the principle of state consent to the allocation of treaty-based international criminal jurisdiction, it disengages the ICC from states parties’ jurisdictional limitations, and finally it finds support in the language of Article 12, paragraph 2 of the Rome Statute: the provision simply stipulates under (a) that criminal conduct must occur on the ‘territory’ of a State Party—that is, the geographical space over which state enjoys territorial sovereignty—and requires under (b) that the person accused of the crime must be a national, both alternatives notably without the addition ‘under the State Party’s jurisdiction’. Having said that, one can deduce that the final word on the proper source of the ICC's jurisdiction has not yet been spoken if only because the ICC itself has very clearly stated, in the context of other legal questions, that the mandate under which it acts is not on behalf of its member states, but on behalf of the international community as a whole.123

120 Ibid., para. 46. 121 Pre-Trial Chamber II, Situation in the Islamic Republic of Afghanistan, No. ICC-02/17, para. 59. 122 Myanmar case (n. 51), para. 70. 123 Appeals Chamber, The Prosecutor v. Omar Hassan Ahmad al Bashir, No. ICC-02/05-01/09 OA2, para. 115.

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international criminal jurisdiction 527

IV. Assessment and Conclusion International criminal jurisdiction is certainly not a new phenomenon but its exact source remains a point of uncertainty and contention. Given its polarizing effect on opinion it is unsurprising that there is a great variety of legal theories which attempt to explain and justify international criminal jurisdiction; it is, however, the self-evaluation of international courts and tribunals that provide a somewhat clearer picture. The notion that an international criminal court acts on behalf of the international community as a whole, from which it thus directly draws its jurisdictional powers, gains widespread support at the judicial level when the Security Council is involved in establishing the court. The international community of UN members, encompassing almost all states, acts through the Security Council, whose peace and security mandate has allowed the creation of a distinct and genuine international criminal jurisdiction in recent decades. This phenomenon has been made manifest at times through an independent subsidiary body (ICTY, ICTR, STL) or alternatively through utilization of the ICC. Driven by a desire to attain the same status, the SCSL considered the bilateral agreement between Sierra Leone and the United Nations establishing the Special Court as sufficient to provide it with distinct international criminal jurisdiction. The rationale of the SCSL remains debatable,124 but it does serve to illustrate the eagerness of the SCSL to jurisdictionally uncouple from the state that initiated its establishment. The somewhat contradictory effect was that even though the international community of UN Member States acted through the Security Council to maintain peace and security by safeguarding international justice, no single member of that community apart from Sierra Leone was bound to cooperate with the judicial body established to achieve just this aim (pacta tertiis nec nocent nec prosunt). This problem of how non-States Parties react to and interact with international criminal jurisdiction is particularly relevant to the ICC. The Office of the Prosecutor approached the issue on the basis of the delegation-of-jurisdiction theory and notably refrained from making the international community as a whole the ultimate source of the ICC’s international criminal jurisdiction. Rather, it portrayed the ICC as being in the tradition of the Nuremberg Tribunal and its famous reasoning: ‘In doing so, [the Signatory Powers] have done together what any one of them might have done singly.’125 The ICC and the IMT both being treaty-based international criminal courts, their recourse to domestic criminal jurisdiction is preferable to an invocation of the international community. The main reason for that is that there is more than one international community due to different groupings of states with different common goals. In the field of international criminal justice, this results in at least two competing international communities: the one that has an interest in the universal punishment of certain serious international crimes undertaken at the national level, and the one that entrusts this task 124 Williams (n. 107), 304.

125 IMT, Judgment and Sentences (n. 58), 216.

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528 kirsten schmalenbach to an independent body having international criminal jurisdiction. In the case of the ICC, the members of these two communities are not congruent so that the legal position of those who have not entrusted the ICC with international criminal jurisdiction needs clarification. The transfer-of-jurisdiction approach provides a relatively straightforward answer by pointing at the jurisdictional titles of states that are either rooted in their sovereignty (territorial and personal jurisdiction) or in the desire of the international community as a whole to end impunity (universality principle). Nevertheless, the likelihood of the jurisdiction-transfer model being the conclusive final word for the origin of international criminal jurisdiction seems low. Considering that treaty-based international criminal courts are part of the family of international organizations but stand out because of their supranational powers, it is noteworthy that the European Union claims jurisdictional titles vis-à-vis nationals of non-States Parties which are usually attributed to states, for example in the context of fines imposed under competition law. There has never been a case where the European Court of Justice considered it necessary to justify the European Union’s jurisdictional claims on the basis of a transfer of jurisdiction. Instead, the Court simply proceeds from the supposition that as an organization with supranational powers the European Union can, as a matter of international customary law (but subject to the limitation of its own constituent instruments) internationally rely on the same jurisdictional titles as its Member States. In essence, nothing more is needed.

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Chapter 22

J u r isdiction a n d I n ter nationa l Ter r itor i a l A dmi n istr ation James Summers

I. Introduction

530

II. The Basis for International Territorial Administration Jurisdiction and Its Impact on National Law

532

III. Jurisdiction within the Legal System of an International Administration533 IV. Jurisdiction over International Crimes

537

V. The Jurisdictional Immunities of International Territorial Administrations and their Staff

542

VI. Human Rights Jurisdiction

544

VII. Conclusion

551

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530 James Summers

I. Introduction State jurisdiction is exercised for the most part over the territory of a nation state and finds its limits, in turn, by the sovereignty of other states, likewise emanating from a territorial base and reinforced by international law.1 However, for international organizations the relationship with jurisdiction is usually quite different. Lacking sovereignty, they are created by agreement between states, their powers derivative of the terms agreed in their constitutional documents. They also lack the national territorial base enjoyed by states and the same legal connection with their employees that states have with their nationals, leaving them reliant on states for both their offices and for their staff. For this reason, these organizations and their staff typically enjoy immunities to address this vulnerability and allow their independent function.2 International institutions can also exercise jurisdiction alongside states. The capacity to assert this can derive either from a treaty basis3 or as an enforcement measure of the UN Security Council (UNSC).4 But, such assertions of jurisdiction must exist alongside states’ jurisdiction, which may require a determination of the one that takes priority.5 These different but still overlapping contexts of states’ jurisdiction and those of international organizations coupled with the jurisdictional immunities of these organizations create a particular challenge where they are in a position to directly administer territory. These situations have been commonly described as international territorial administration and involve an international body becoming responsible for the administration of a territory and performing a range of government functions normally associated with states.6 These functions, in themselves, may inherently involve the assertion of jurisdiction over a territory and its population. International territorial administration is an exception to the normal state of affairs, in which a piece of land and its inhabitants will inherently fall under the sovereignty of one state or another. They have been created where international organizations or states collectively have had to step in to stabilize or reconstruct a particular country or region. 1 See SS Lotus (France v Turkey) [1927] PCIJ Series A, No. 10, 18–19; D. W. Bowett, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’, British Yearbook of International Law 52 (1982): 1–26; C. Ryngaert, Jurisdiction in International Law, 2nd edn (Oxford University Press, 2015), 29–48. 2 See N. Blokker, ‘International Organizations: The Untouchables?’, International Organizations Law Review 10 (2013): 259, 260; J. Klabbers, An Introduction to International Organizations Law, 3rd edn (Cambridge University Press, 2015), 130–1. 3 See e.g. Rome Statute of the International Criminal Court 1998, Art. 12. 4 See ibid., Art. 13(b). 5 See ibid., Art. 17(1). 6 See C. Stahn, The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge University Press, 2008); R. Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford University Press, 2008); R. Caplan, International Governance of War-Torn Territories: Rule and Reconstruction (Oxford University Press, 2005); S. Chesterman, You, the People: The United Nations, Transitional Administration, and StateBuilding (Oxford University Press, 2004).

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International Territorial Administration 531 This has included sovereign states (Cambodia, Bosnia-Herzegovina), disputed regions within states (Eastern Slavonia, Kosovo) and non-self-governing territories (East Timor). They are established on an ad hoc basis, with a mandate tailored to the situation they are intended to address. The reasons for this may include: preparations for elections (UNTAC in Cambodia);7 the transfer of territory (UNTAES in Eastern Slavonia,8 UNTEA in West Papua);9 state-building in preparation for independence (UNTAET in East Timor); the establishment of self-government in a territory pending determination of its final status (UNMIK in Kosovo); the supervision of states with a weak post-conflict government (Office of the High Representative in Bosnia-Herzegovina or International Civilian Representative in Kosovo);10 or the performance of some governmental functions, such as justice (EULEX in Kosovo).11 These administrations are normally temporary. Some operate within specified time limits.12 A few have open-ended mandates,13 though in the case of UNMIK in Kosovo this led to a declaration of independence that radically redefined the mission. The Office of the High Representative (OHR) in BosniaHerzegovina, established in 1995,14 has been the most enduring, and still exists today, alongside a greatly diminished UNMIK and the EULEX Mission. International territorial administration involves transposing international institutions onto state territory. Correspondingly, the law applicable under an international administration may include both the national law of a state and laws promulgated by the organization. Moreover, a territory may fall under the mandate of more than one i nternational organization with overlapping claims for jurisdiction—for example, between the UNMIK Courts and the International Criminal Tribunal for former Yugoslavia (ICTY) in Kosovo. States may also have human rights jurisdiction over territories under human rights treaties, which could be disrupted by the establishment of an administration under an organization incapable of being party to those treaties. International territorial administration therefore creates a distinctive and complex environment for jurisdiction. This chapter will explore five different aspects of jurisdiction in relation to these administrations. First, it will look at the basis for these bodies to assert jurisdiction over a territory and its people. Second, it will examine how this can be exercised within the domestic legal systems of these territories. Third, it will investigate jurisdiction over international crimes, which may be shared between different international bodies. Fourth, it will consider the impact of international 7 UNSC Res. 745, 28 February 1992. 8 UNSC Res. 1037, 15 January 1996. 9 UNGA Res. 1752(XVII), 21 September 1962. 10 International Civilian Representative, Annex IX, Comprehensive Proposal for the Kosovo Status Settlement, UN Doc. S/2007/168/Add.1 11 Council Joint Action 2008/124/CFSP, 4 February 2008. 12 See e.g. UNTAET established by UBSC Res. 1272, 25 October 1999, para. 17: ‘for an initial period until 31 January 2001’. Later modified to 31 January 2002 in UNSC Res. 1319, 20 September 2000, para. 2, and then 20 May 2002 in UNSC Res. 1392, 31 January 2002, para. 2. 13 See e.g. UNMIK established by UNSC Res. 1244, 10 June 1999, para. 19: ‘the international civil and security presences are established for an initial period of 12 months, to continue thereafter unless the Security Council decides otherwise’. 14 UNSC Res. 1031, 15 December 1995.

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532 James Summers organizations’ immunities on jurisdiction, including, fifth, their significance for human rights jurisdiction. The focus will be mostly on the missions in Kosovo and East Timor (UNMIK and UNTAET) as well-developed examples of international administration.

II. The Basis for International Territorial Administration Jurisdiction and Its Impact on National Law The jurisdiction of international territorial administrations, as with international organizations more generally, ultimately derives from state consent. From this, there are two potential ways in which the authority and jurisdiction of an international administration could be established. The first is that states, including the state in control of the territory in question, consent to establish the administration. The UN Transitional Authority in Cambodia (UNTAC), for example, was created by UNSC Resolution 745 on Cambodia in 1992,15 but its mandate and powers were consented to by Cambodia in the Paris Agreements 1991.16 The resolution was not framed as an enforcement measure, but the means by which the agreement could be implemented.17 The UN Transitional Authority in East Timor (UNTAET), by contrast, was established in UNSC Resolution 1272 on East Timor on 25 October 1999 as an enforcement measure.18 Nonetheless, it was still based on a previous agreement between Indonesia and Portugal,19 which provided for ‘a peaceful and orderly transfer of authority in East Timor to the United Nations’.20 The formality of consent, of course, does not mean that it has not been achieved through political pressure and, indeed, the concept of state consent itself can be controversial. In Kosovo, the International Civilian Representative (ICR) and EULEX Mission were welcomed by Kosovo authorities in its declaration of independence of 200821 as part of the agreed context in which a number of states would recognize Kosovo as independent. However, the declaration itself was fiercely contested by Serbia, which formally exercised sovereignty over the territory, and many other states. Moreover, the 15 UNSC Res. 745, 28 February 1992. 16 Final Act of the Paris Conference on Cambodia, 23 October 1991, UN Doc. A/46/608—S/23177. 17 UNSC Res. 745, 28 February 1992. 18 UNSC Res. 1272, 25 October 1999. 19 See Preamble, UNSC Res. 1272, 25 October 1999. 20 Art. 6, Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor, 5 May 1999, UN Doc. A/53/951—S/1999/513. 21 ‘We invite and welcome an international civilian presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led rule of law mission.’ Kosovo Declaration of Independence, 17 February 2008, para. 5 (2008) 47 ILM 467–8.

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International Territorial Administration 533 establishment of these bodies as a condition for independence, especially the ICR with supreme power over legislation and government appointments, threw into question whether Kosovo actually met the criteria for statehood which the declaration asserted it had achieved. A second option would be for the administration to be established by the UNSC as an enforcement measure under Chapter VII of the UN Charter. This would be a supranational basis, as it does not need to rely on the consent of the state with jurisdiction over a territory to establish such an administration. UN Member States have consented to the binding authority of UNSC resolutions by being parties to the UN Charter. Nonetheless, the Council established the UNMIK mission in Kosovo in UNSC Resolution 1244 on 10 June 1999 on the territory of a non-Member State22—namely, the Federal Republic of Yugoslavia (later Serbia and Montenegro), which would not join the United Nations until November 2000.23 However, even in this case, the resolution built on a previous agreement, the Kumanovo Military Technical Agreement of 9 June 1999,24 which allowed the deployment ‘under UN auspices of effective international civil and security presences’ in Kosovo25 This expressed Yugoslav agreement, albeit extracted by NATO through the use of force.

III. Jurisdiction within the Legal System of an International Administration International territorial administrations will be created for territories in which jurisdiction is already being asserted under national laws and institutions. The question is then how the new administration interacts with this existing jurisdictional framework. This depends on the role of the administration. Administrations like UNMIK or UNTAET were mandated to directly assert legislative, executive, and judicial jurisdiction. Alternatively, ICR and OHR performed a supervisory function over national institutions, though this function can involve similar assertions of jurisdiction.26 This role may also change over the lifetime of the administration. UNMIK and UNTAET were mandated to create local self-governing institutions and then transfer powers to them, 22 UNSC Res. 1244, 10 June 1999. 23 UNGA Res. 55/12, 1 November 2000. 24 See UNSC Res. 1244, 10 June 1999, para. 5: ‘Decides on the deployment in Kosovo, under United Nations auspices, of international civil and security presences, with appropriate equipment and personnel required, and welcomes the agreement of the Federal Republic of Yugoslavia to such presences.’ 25 Military Technical Agreement between the International Security Force (KFOR) and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia, 9 June 1999, http://www.nato.int/kosovo/ docu/a990609a.htm. 26 See R. Caplan, ‘International Authority and State Building: The Case of Bosnia and Herzegovina’, Global Governance 10 (2004): 53, 56–7.

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534 James Summers while retaining a supervisory role. Even with a mandate to legislate, international administrations have relied on existing legal systems. Some of these laws may, however, be changed, if they are objectionable to the local population or from the perspective of international human rights or the rule of law. The legal mandate of both UNMIK and UNTAET was initially defined by the full transfer of legislative and executive power to the Secretary-General’s Special Representative (SRSG), together with his full authority over administrative and judicial appointments.27 This provided the legal basis for constructing the international administration in both territories. Both administrations, though, maintained existing laws in the territory at the time of their establishment, which defined the scope of jurisdiction, provided they were compatible with international human rights standards.28 UNMIK derived its jurisdiction over Kosovo from UNSC Resolution 1244.29 Nonetheless, in establishing jurisdiction within the territory, it relied largely on existing national law. This was reflected in UNMIK Regulation 1999/1 of 25 July 1999, which maintained the laws applicable in Kosovo prior to the establishment of the mission on 24 March 1999.30 The reasons behind this were both legal and practical. UN lawyers were guided by international humanitarian law concerning occupation, specifically Article 43 of the Hague Regulations of 1907, which maintained the laws in force in a territory.31 More practically, the easiest approach to the assertion of authority in the territory was through existing laws. However, this choice of law provoked a backlash from local Albanians, who saw it as giving recognition to the abolition of the autonomy Kosovo had enjoyed within the former Social Federal Republic of Yugoslavia before its revocation by Serbia.32 Anthony J. Miller, UNMIK legal-advisor in this period, points to this choice being driven by a mix of naivety and lack of local outreach by international staff who failed to appreciate why those laws might be unacceptable.33 As a result, on the 12 December 1999 the standard for the applicable law was revised to become the law in force on 22 March 1989 when this autonomy had been revoked.34 Nonetheless, despite this recognition of Kosovo’s Criminal Code, local courts still obtained jurisdiction from

27 See s. 1, UNMIK Reg. 1999/1, 25 July 1999; s. 1, UNTAET Reg. 1999/1, 27 November 1999. 28 See ss. 3 and 2, UNMIK Reg. 1999/1, 25 July 1999; ss. 3.1 and 2, UNTAET Reg. 1999/1, 27 November 1999. 29 A. J. Miller, ‘UNMIK: Lessons from the Early Institution-Building Phase’, New England Law Review 39 (2004): 9, 14–15. 30 See s. 3, UNMIK Reg. 1999/1, 25 July 1999. 31 ‘The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.’ Art. 43, Regulations Respecting the Laws and Customs of War on Land annexed to Hague Convention (IV) on Laws and Customs of War on Land, 18 October 1907. See Miller (n. 29), 15. 32 S. Chesterman, ‘UNaccountable? The United Nations, Emergency Powers, and the Rule of Law’, Vanderbilt Journal of Transnational Law 42 (2009): 1509–41, 1522. 33 Miller (n. 29), 15–16. 34 See s. 1.1, UNMIK Reg. 1999/24, 12 December 1999.

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International Territorial Administration 535 the law of the federal Yugoslav system. Jurisdiction over war crimes, in particular, was based on the Yugoslav Criminal Code.35 With a longer duration than UNTAET, UNMIK was subsequently able to promulgate its own Provisional Criminal Code in 2003, which defined the scope of its criminal jurisdiction. The code addressed the full range of the principles of criminal jurisdiction. First, following the territorial principle, jurisdiction could be exercised in the territory of Kosovo.36 Jurisdiction also extended to civil aircraft registered in Kosovo,37 though for this land-locked territory not to flagged boats. Second, following the nationality principle, jurisdiction applied for criminal acts committed by residents of Kosovo outside its territory.38 Third, based on the passive personality principle, jurisdiction could be extended to crimes against a resident of Kosovo committed outside its territory.39 Fourth, following the security principle, jurisdiction could be exercised for offences committed outside Kosovo that constituted a threat to the security of the territory or its population, in whole or in part.40 Fifth, the Code extended extraterritorial jurisdiction to a wide range of offences, many of which were recognized to fall under the universal principle: genocide, crimes against humanity, war crimes, piracy, and crimes against internationally protected persons,41 as well as hijacking, endangering civil aviation, maritime navigation and platforms on the continental shelf, slavery, people trafficking, and counterfeit currency.42 UNTAET defined its jurisdiction alongside its legal structure in UNTAET Regulation 1999/1 of 27 November 1999. This maintained the ‘laws applied in East Timor prior to 25 October 1999’,43 when the mission was established by the UNSC, as long as they did not conflict with international standards. These included, in particular, non-discrimination and the rights proclaimed in seven UN-based human rights instruments.44 This meant a continuation of Indonesian national law previously enforced in the territory and jurisdiction based on the Indonesian Penal Code, which itself was an inheritance from the Dutch colonial period dating back to 1915. This code remained in force after UNTAET’s mandate terminated with independence in 200245 until 2009 when it was replaced by the East Timor (now known as Timor-Leste) Penal Code.46 This provided the general 35 See J. Cerone and C. Baldwin, ‘Explaining and Evaluating the UNMIK Court System’, in C. P. R. Romano, A. Nollkaemper, and J. K. Kleffner (eds.), International Criminal Courts: East Timor, Kosovo and Cambodia (Oxford University Press, 2004), 41, 45–5. 36 Art. 99(1), UNMIK Reg. 2003/25, 6 July 2003. 37 Art. 99(2), ibid. 38 Art. 101, ibid. 39 Art. 102, ibid. 40 Art. 100(2), ibid. 41 ILC Draft Code. 42 Art. 100(1), UNMIK Reg. 2003/25. 43 See s. 3, UNTAET Reg. 1999/1, 27 November 1999. 44 These were the Universal Declaration on Human Rights 1948; International Covenant on Civil and Political Rights 1966 and its Protocols; International Covenant on Economic, Social and Cultural Rights 1966; Convention on the Elimination of All Forms of Racial Discrimination 1965; Convention on the Elimination of All Forms of Discrimination Against Women 1979; Convention Against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment 1984; and the Convention on the Rights of the Child 1989. See s. 2, UNTAET Reg. 1999/1. 45 It was maintained in Art. 1, Decree Law No. 10/2003, 24 June 2003. 46 Timor-Leste, Decree Law No. 19/2009, 30 March 2009.

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536 James Summers basis for criminal jurisdiction in the operation of a reconstructed East Timorese court system. The more specific issue of jurisdiction over atrocities in the territory was reserved for a system of Special Panels for Serious Crimes, which could exercise universal jurisdiction over international crimes. The Indonesian Penal Code provided for a number of bases for criminal jurisdiction: for acts on Indonesian territory;47 on Indonesian vessels and aircraft;48 by Indonesian nationals;49 and for a range of crimes against national security.50 However, national security as a basis for jurisdiction was problematic. Security laws had been an instrument of oppression since Indonesia’s invasion and annexation of East Timor in 1975. Correspondingly, this general maintenance of Indonesian law was accompanied by the specific invalidation of six security laws.51 In terms of universal jurisdiction, Indonesia recognized extraterritorial jurisdiction for piracy52 as well as jurisdiction from treaty commitments over crimes against the safety of civil aviation and hijacking.53 This maintenance of Indonesian law reflected the practicalities faced by the new administration. The destruction of East Timor had exceeded even that of Kosovo. Some 60–80 per cent of all public buildings had been destroyed. The first judges were sworn in in smoke-blackened court rooms, devoid of furniture, electricity, running water, and most legal texts.54 It was also estimated that there were less than ten trained lawyers left in the territory.55 The locals who could be found with a legal training were all graduates of Indonesian law schools, trained in Indonesian law.56 The continuation of this law was a practical necessity for a hastily assembled legal system. Nonetheless, within the international administration, this created friction between local judges (themselves inexperienced recent law school graduates) and international judges who had no knowledge of Indonesian law or the Bahasa it was written in.57 There was also problem of legitimacy, as this situation gave recognition to the Indonesian occupation. This tension came to a head in the Court of Appeal’s Armando dos Santos decision of 15 July 2003, in which the Court ruled that ‘the law applicable in East Timor prior to 25 October 1999’ in UNTAET Regulation 1999/1 was the Portuguese law that operated before the Indonesian invasion.58 Despite the political attraction of this decision, such a basis for jurisdiction

47 Art. 2, Penal Code of Indonesia. 48 Art. 3, ibid. 49 Art. 5(1), ibid. 50 Art. 4, ibid. 51 These were the Law on Anti-Subversion; Law on Social Organizations; Law on National Security; Law on National Protection and Defence; Law on Mobilization and Demobilization; and Law on Defence and Security. See s. 3.2, UNTAET Reg. 1991/1, 27 November 1999. 52 Art. 4, Penal Code of Indonesia. 53 Art. 4, ibid. 54 H. Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, American Journal of International Law 95 (2001): 46–63, 57. 55 Chesterman (n. 6). 56 D. Cohen, ‘ “Hybrid” Justice in East Timor, Sierra Leone, and Cambodia: “Lessons Learned” and Prospects for the Future’, Stanford Journal of International Law 43 (2007): 1, 8–9. 57 Ibid., 8–9. 58 SPSC, Prosecutor v Armando dos Santos, Case No. 16/2001, 15 July 2003, in A. Klip and G. Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals (Antwerp: Intersentia 2008), 103, 104–5.

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International Territorial Administration 537 was impractical as there were no local lawyers trained in Portuguese law. The Timor-Leste parliament responded by affirming that the applicable law was Indonesian.59

IV. Jurisdiction over International Crimes The prosecution of international crimes posed different challenges for the administrations in Kosovo and East Timor. In Kosovo, there were three potential options for jurisdiction over these crimes. First, an existing international criminal body, the ICTY, already had jurisdiction over the territory of the former Yugoslavia. Second, the reconstructed Kosovo court system might exercise jurisdiction. Third, a new judicial body could be established for Kosovo specifically with jurisdiction over international crimes. This third option, however, never materialized. Ultimately, most international crimes were tried in an adaption of the Kosovo court system, to create hybrid bodies composed of both international and national judges. Jurisdiction over international crimes raised the question of the relationship between UNMIK and the ICTY. The latter was established on 25 May 1993 with jurisdiction over grave breaches of the Geneva Conventions, other war crimes, genocide, and crimes against humanity committed on the territory of the former Socialist Federal Republic of Yugoslavia since 1 January 1991.60 The forward-looking temporal nature of this jurisdiction meant that crimes committed prior and during the 1999 Kosovo conflict also fell within the scope its jurisdiction. Nonetheless, as an innovative and relatively expensive ad hoc judicial body, situated in The Hague, the ICTY was not necessarily best placed to prosecute many of the individuals now being arrested by UNMIK police. In September 1999, the ICTY Prosecutor Carla del Ponte outlined the relationship between the ICTY and UNMIK, noting a limited role for the Yugoslav Tribunal, which had ‘neither the mandate, nor the resources, to function as the primary investigative and prosecutorial agency for all criminal acts committed on the territory of Kosovo’.61 Instead, the tribunal would concentrate on those leaders of Yugoslavia and Serbia already under indictment, with an additional investigation over their involvement in Kosovo. Beyond these individuals, she prioritized high-level civilian, police, and military leaders responsible for crimes in the

59 D. Cohen, Indifference and Accountability: The United Nations and the Politics of International Justice in East Timor (Honolulu: East–West Center, 2006), 84–5. 60 See Arts. 2–5, and 8, Statute of the International Criminal Tribunal for the former Yugoslavia, annexed to UNSC Res. 827, 25 May 1993. 61 Statement by Carla Del Ponte Prosecutor of the International Criminal Tribunal for the Former Yugoslavia on the investigation and Prosecution of crimes committed in Kosovo, 29 September 1999, paras. 5–6, http://www.icty.org/en/press/statement-carla-del-ponte-prosecutor-international-criminaltribunal-former-yugoslavia.

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538 James Summers conflict, and other individuals responsible for ‘particularly serious crimes’.62 This left it likely that the majority of offences committed in and around the Kosovo conflict would fall within the jurisdiction of UNMIK. The ICTY Statute allowed national courts to exercise concurrent jurisdiction with the tribunal, though the ICTY could assert the primacy of its jurisdiction.63 The ICTY’s exercise of jurisdiction over Kosovo was ultimately limited. The tribunal tried fourteen individuals over crimes committed in the territory—eight Serbs and six Kosovo Albanians. The indicted Serbs were part of the senior political and military leadership in Serbia and the Federal Republic of Yugoslavia (FRY),64 while the ethnic Albanians were commanders in the Kosovo Liberation Army (KLA).65 One of the indicted, Slobodan Milošević, died during the trial, eight were convicted (six Serbs and two Albanians), and five acquitted. By contrast, according to an Organization for Security and Cooperation in Europe (OSCE) study, by 2009, and UNMIK’s transfer of jurisdiction to EULEX, thirty-seven individuals had been tried for war crimes allegations in Kosovo courts.66 The reconstruction of a Kosovo justice system posed particular challenges for UNMIK. After the abolition of autonomy, the judicial system had been dominated by ethnic Serbs, most of whom had fled. Those who remained to serve with UNMIK faced serious violence, while those ethnic Albanians with legal qualifications, nonetheless, lacked experience. The first war crimes trials took place in an ethnically polarized judicial system, with ethnic Serbs on trial before ethnic Albanian judges. Following hunger strikes by ethnic Serbs detained on war crimes charges, the SRSG appointed i nternational judges, first in the ethnically divided town of Mitrovica/Mitrovicë in February 200067 and then across Kosovo in May.68 Nonetheless, the inclusion of i nternational judges was not in itself seen as sufficient to ensure impartiality, if they were not a majority of the bench. Consequently, in December the SRSG established the right of the prosecutor, accused, or defence to petition for the assignment of a majority bench of international judges.69 Subsequently, all war crimes trials were conducted before Kosovo courts under 62 Ibid., paras. 2–4. 63 Ibid., para. 7. See Art. 9 ICTY Statute. 64 Slobodan Milošević was President of the Republic of Serbia (1989–97) and President of the FRY (1997–2000); Milan Milutinović was the President of the Republic of Serbia; Nikola Šainović was a Deputy Prime Minister of the FRY; Dragoljub Ojdanić was the Chief of the General Staff of the Yugoslav Army; Nebojša Pavković was the Commander of the Yugoslav Army, 3rd Army; Vladimir Lazarević was the Commander of the Yugoslav Army, Priština Corps; Sreten Lukić was the Head of the Serbian Ministry of Interior (MUP) Staff for Kosovo; Vlastimir Đorđević was the Assistant Minister to the Serbian Minister of the Internal Affairs (MUP) and Chief of the Public Security Department of the MUP (the RJB). See Prosecutor v Slobodan Milošević and Others, ICTY Case No. IT-99–37, 22 May 1999, paras. 40–3; Prosecutor v Milan Milutinović and Others, ICTY Case No. IT-05-87-T, 26 February 2009, para. 8; Prosecutor v Vlastimir Ðorđević, ICTY Case No. IT-05–87/1-T, 23 February 2011, para. 2. 65 Prosecutor v Fatmir Limaj, Haradin Bala, Isak Musliu, ICTY Case No. IT-03-66-T, 30 November 2005, paras. 2–4; Prosecutor v Ramush Haradinaj, Idriz Balaj, Lahi Brahimaj, ICTY Case No. IT-04-84-T, 3 April 2008, paras. 2–4. 66 OSCE, Kosovo’s War Crimes Trials: An Assessment Ten Years On 1999–2009 (May 2010), 8. 67 UNMIK Reg. 2000/6, 15 February 2000. 68 UNMIK Reg. 2000/34, 27 May 2000. 69 UNMIK Reg. 2000/64, 15 December 2000.

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International Territorial Administration 539 a hybrid model with a majority of international judges.70 An alternative proposal to establish a specific hybrid war crimes court had been shelved earlier in September due to concerns over its cost.71 The jurisdiction of these bodies over international crimes differed. While the ICTY had jurisdiction over genocide, war crimes, and crimes against humanity, the jurisdiction of the UNMIK Courts was initially dependent on existing national law. The Yugoslav Criminal Code had recognized the crime of genocide (Article 141) and various war crimes (Articles 142–51),72 but not crimes against humanity. In the Trajkovic case of March 2001, the presiding international judge in the District Court of Gjila, took the innovative approach of reading crimes against humanity into the war crimes provision in Article 142 of the Yugoslav Criminal Code.73 Nonetheless, the judge was considered to have erred in law and the conviction was subsequently overturned by the Supreme Court, though it avoided discussing this conflation of the two crimes.74 Correspondingly, while the ICTY initiated prosecutions for crimes against humanity from May 1999,75 UNMIK jurisdiction over this crime was not available until the promulgation of the Provision Criminal Code in July 2003.76 Crimes against humanity in the ICTY Statute also contained its own distinctive requirement of a nexus with conflict.77 Nonetheless, the Tribunal established the existence of an armed conflict in Kosovo from clashes between KLA and FRY forces in May 1998 through to the NATO bombing campaign of 24 March–10 June 1999.78 These findings were, of course, also necessary for war crimes. Both tribunals had jurisdiction over genocide, though the ICTY prosecutor did not indict any suspects for the crime in Kosovo. A majority local panel in the District Court of Mitrovica reached a genocide conviction in Vuckovic in January 2001,79 though this was overturned by the Supreme Court on the grounds that the constituent elements were not present.80

70 OSCE, Kosovo’s War Crimes Trials: A Review (September 2002), 10–11. 71 See OSCE, Kosovo: A Review of the International Criminal Justice System, 1 February 2000–31 July 2000 (10 August 2000), 76. 72 Arts. 141, 142–51, Criminal Code of the Socialist Federal Republic of Yugoslavia, 1 July 1977. 73 Momcilo Trajkovic, 6 March 2001, see OSCE, Kosovo’s War Crimes Trials: A Review (September 2002), 24–5. 74 OSCE (n. 66), 47–8. 75 See Prosecutor v Slobodan Milosević, Milan Milutinović, Nikola Sainović, Dragoljub Ojdanić and Vlajko Stojiljković, Indictment, Case No. IT-99–37, 22 May 1999. 76 Art. 117, UNMIK Reg. 2003/25, 6 July 2003. 77 Del Ponte (n. 61), para. 5. See Prosecutor v Milan Milutinović and Others, para. 140. 78 Prosecutor v Fatmir Limaj, Haradin Bala, Isak Musliu, ICTY Case No. IT-03-66-T, 30 November 2005, para. 171; Prosecutor v Milan Milutinović and Others, paras. 841, 1209, 1217. 79 Miroslav Vuckovic and Bozur Bisevac, Reported in OSCE 2002, 14–15. 80 ‘[T]he exactions committed by the Milosevic’s regime in 1999 cannot be qualified as criminal acts of genocide, since their purpose was not the destruction of the Albanian ethnic group in whole or in part, but its forcefully departure from Kosovo as a result of systematic campaign of terror including rapes, arsons and severe maltreatments. Such criminal acts correspond to the definition of crimes against humanity given by international laws (widespread or systematic plan of attack against civilian population during the war) or can be qualified war crimes as per Article 142 of the CLY.’ Quoted in OSCE (n. 66), 49.

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540 James Summers In East Timor, UNTAET also established a hybrid model for the prosecution of international crimes, but its context was significantly different from UNMIK. While UNMIK courts operated alongside the ICTY, there was no similar international tribunal with jurisdiction over East Timor and it is worth noting that Indonesia is not a party to the International Criminal Court (ICC) Statute. Despite the recommendations of a UN Commission of Inquiry81 to create an ad hoc tribunal for East Timor, no such body was ever set up.82 This stemmed from a lack of political will, especially by the permanent members of the UNSC,83 in the face of Indonesian reluctance to cooperate with any form of international tribunal.84 Rather than creating an international tribunal with the capacity to exercise broad jurisdiction, the United Nations deferred to Indonesian promises to prosecute its nationals in its own courts.85 These promises ultimately proved to be hollow. Instead, UNTAET adapted what remained of the East Timorese judicial system to create the Special Panels for Serious Crimes (SPSC). The Special Panel system comprised two panels at the Dili District Court and one at the Court of Appeal, each consisting of three judges, two international and one East Timorese. Prosecutions were conducted by a Serious Crimes Unit. The panel system was established in UNTAET Regulation 2000/15 on 6 June 200086 and operated until 20 May 2005, when it was terminated by the UNSC.87 The SPSC had jurisdiction over six crimes: genocide, war crimes, crimes against humanity, torture, murder, and sexual offences.88 The specific nature of this jurisdiction was elaborated in UNTAET Regulation 2000/15, which drew from two different bases for jurisdiction. Genocide, war crimes, crimes against humanity, and torture were explicitly subject to universal jurisdiction,89 which allowed jurisdiction regardless of whether the offence was committed in the territory of East Timor or by or against an East Timorese citizen.90 The definition of these offences was based on ‘applicable treaties and recognized principles and norms of international law’,91 and specifically the drafters turned to

81 Report of the Commission of Inquiry on East Timor to the Secretary-General, UN Doc. A/54/726-S/2000/59 (31 January 2000). 82 S. Katzenstein, ‘Hybrid Tribunals: Searching for Justice in East Timor’, Harvard Human Rights Journal 16 (2003): 245–78, 246–7. 83 Cohen (n. 56), 25. 84 S. Chesterman, ‘Justice under International Administration: Kosovo, East Timor and Afghanistan’, International Peace Academy, September 2002, 6. 85 Katzenstein (n. 82), 247. 86 See s. 1.1, UNTAET Reg. 2000/15, 6 June 2000. The authority to establish the panels had been previously conferred in s. 10.3, UNTAET Reg. 2000/11 on 6 March 2000. 87 UNSC Res. 1543, 14 May 2004. 88 UNTAET Reg. 2000/11, 6 March 2000. 89 See s. 2.1, UNTAET Reg. 2000/15. 90 See s. 2.2, ibid.: ‘For the purposes of the present regulation, “universal jurisdiction” means jurisdiction irrespective of whether: (a) the serious criminal offence at issue was committed within the territory of East Timor; (b) the serious criminal offence was committed by an East Timorese citizen; or (c) the victim of the serious criminal offence was an East Timorese citizen.’ 91 See s. 3.1, ibid.

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International Territorial Administration 541 the Rome Statute of the ICC of 1998.92 The definitions of genocide, war crimes, and crimes against humanity were copied from the ICC Statute.93 By contrast, jurisdiction over murder and sexual offences was based on the applicable East Timorese law, the Indonesian Code,94 which meant that they were defined by Indonesian law.95 Moreover, the temporal jurisdiction of the SPSC over these two offences was specifically limited from 1 January to 25 October 1999,96 covering the period of violence from the start of 1999 until the establishment of UNTAET. Correspondingly, jurisdiction over these crimes did not extend to previous atrocities committed in East Timor following the Indonesian occupation in 1975. While the SPSC was equipped with universal jurisdiction over international crimes, the practicalities of exercising it proved problematic. The vast majority of suspects from the post-plebiscite violence had fled to Indonesia. These included all the high-ranking and mid-ranking suspects.97 The Serious Crimes Unit filed ninety-five indictments against 391 individuals, of whom 309 were outside the territory of East Timor,98 leaving only low-level perpetrators who had failed to escape.99 The question of jurisdiction was also affected by available resources. The SPSC had to fight for limited resources within UNTAET, a position not helped by its hybrid structure, which meant that the question of who had ultimate responsibility for the panels, the United Nations or the East Timorese, could avoided.100 The panels had to work with a significantly lower budget than the ad hoc tribunals (less than 3 per cent of the ICTY budget).101 The Serious Crimes Unit similarly suffered from a lack of resources with the consequence that prosecutors opted for charges under national crimes of murder and rape rather than international crimes.102 In the Joao Fernandes trial of 25 January 2000, in particular, the defendant had been part of an attack by over 100 militia members on a police station in which 6,000 people were sheltering.103 However, rather than investigating this incident as a crime against humanity, for reasons of expediency, Fernandes was charged and convicted of murder,104 though subsequent trials did result in a number of convictions for crimes against humanity.105 From 2000 to 2005, the SPSC completed fifty-five trials, involving eighty-seven defendants, resulting in eighty-four convictions

92 S. de Bertodano, ‘Current Developments in Internationalized Courts’, Journal of International Criminal Justice 1 (2003): 226–44, 230–1. 93 See ss. 4, 5 and 6, UNTAET Reg. 2000/15. 94 See ss. 8–9 ibid. 95 Cohen (n. 56), 8. 96 See s. 10.2, UNTAET Reg. 2000/11 and s. 2.3, UNTAET Reg. 2000/15. 97 Cohen (n. 56), 15. 98 Ibid., 13. 99 De Bertodano (n. 92), 231. 100 Cohen (n. 56), 23. 101 Katzenstein (n. 82), 258. 102 De Bertodano (n. 92), 233. 103 Report of the International Commission of Inquiry on East Timor to The Secretary-General, UN Doc. A/54/726-S/2000/59 (2000), 88–9. 104 See SPSC, Prosecutor v Joao Fernandez, Case No. 01/00/C.G.2000, 25 January 2000, in A. Klip and G. Sluiter (eds.), Annotated Leading Cases of International Criminal Tribunals (Antwerp: Intersentia, 2008), 116, para. 3. See S. Linton, ‘Prosecuting Atrocities at the District Court of Dili’, Melbourne Journal of International Law 2 (2001): 414, 420. 105 See e.g. Armando dos Santos, conviction for crimes against humanity, 9 September 2002. But, see criticisms by Cohen (n. 56), 83.

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542 James Summers and three acquittals106 (a problematically high rate of conviction compared to other tribunals).107 Nonetheless, its closure in 2005 still left 514 investigative files open.108

V. The Jurisdictional Immunities of International Territorial Administrations and their Staff A distinctive feature of the UNTAET and UNMIK missions is that while they built an institutional and legal framework for jurisdiction over people in East Timor and Kosovo, their own staff were largely excluded from this under substantial immunities. This paradox ultimately created a glaring inconsistency between the mandates of the missions to promote human rights, whilst themselves being difficult to hold to account for rights violations. The basis for these immunities was, in the first instance, the UN Convention on Privileges and Immunities of 1946, which itself developed the immunities outlined in Article 105 of the UN Charter.109 UNMIK subsequently defined its own immunities in UNMIK Regulation 2000/47, in August 2000,110 while UNTAET continued to rely on the 1946 Convention.111 In terms of the missions themselves, the 1946 Convention established the absolute immunity of the UN from ‘every form of legal process’.112 Likewise, UNMIK Regulation 2000/47 established absolute immunity for UNMIK and KFOR ‘from any legal process’.113 With staff immunities, while Article 105, linked immunity to the exercise of functions, the 1946 Convention differentiated the most senior UN staff, who enjoyed absolute immunity114 from other staff who only enjoyed immunities in an ‘official capacity’.115 106 End of Mission Report of The Secretary-General on the UN Mission of Support in East Timor, UN Doc. S/2005/310 (12 May 2005). 107 Cohen (n. 56), 9. 108 Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (the then East Timor) In 1999, UN Doc. S/2005/458 (15 July 2005), 16. 109 Art. 105, UN Charter 1945: ‘1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes. 2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.’ 110 UNMIK Reg. 2000/47, 18 August 2000. 111 F. Rawski, ‘To Waive or Not to Waive: Immunity and Accountability in UN Peacekeeping Operations’, Connecticut Journal of International Law 18 (2002): 103, 118. 112 s. 2, Convention on Privileges and Immunities. 113 ss. 2.1 and 3.1, UNMIK Reg. 2000/47. 114 s. 19, Convention on Privileges and Immunities. 115 s. 18, ibid. Also s. 22: ‘Experts . . . performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions.’

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International Territorial Administration 543 Similarly, the immunities of UNMIK staff depended on rank. The most senior officials, including the SRSG, his deputies, Police Commissioner, and other high-ranking officials, had absolute immunity equivalent to those of diplomats.116 Other UNMIK personnel, including local staff, followed a functional model, enjoying immunities for acts ‘in their official capacity’.117 Members of KFOR were treated consistently with peacekeeping troops under the UN’s Model Status-of-Forces Agreement (SOFA).118 This meant that KFOR personnel, other than those recruited locally, were under the exclusive national jurisdiction of their respective sending states, and could only be arrested or detained by persons acting on behalf those states.119 Local personnel had functional immunities for their acts in the service of KFOR,120 while KFOR contractors had similar immunities for official activities performed according to the terms of their contracts.121 These immunities were in keeping with other UN bodies. The problem was, though, that international territorial administration inverted the usual relationship between states and international organizations. In this case, an organization was not in a legally vulnerable position on a state’s territory. It was the government of a territory that exercised jurisdiction over people and property, whilst shielded from legal responsibility before courts and human rights bodies. These contradictions were specifically recognized by the Ombudsperson Institution in Kosovo (OIK) in a special report on UNMIK Regulation 2000/47 in 2001:122 The rationale for classical grants of immunity . . . does not apply to the circumstances prevailing in Kosovo, where the interim civilian administration (United Nations Mission in Kosovo—UNMIK) in fact acts as a surrogate state. It follows that the underlying purpose of a grant of immunity does not apply as there is no need for a government to be protected against itself. The Ombudsperson further recalls that no democratic state operating under the rule of law accords itself total immunity from any administrative, civil or criminal responsibility. Such blanket lack of accountability paves the way for the impunity of the state.123

However, it is indicative that, while the Ombudsperson highlighted the incompatibility of UNMIK and KFOR immunities with international human rights standards and recommended their immediate limitation,124 the administration took no action on the report.125

116 s. 3.2, UNMIK Reg. 2000/47. 117 s. 3.3, ibid. 118 Model Status-of-Forces Agreement for Peace-Keeping Operations, UN Doc. A/45/594 (1990). 119 s. 2.4, UNMIK Reg. 2000/47. See Model SOFA, para. 46(b). 120 s. 2.3, UNMIK Reg. 2000/47. 121 s. 4.2, ibid. 122 Ombudsperson Institution in Kosovo, Special Report No. 1, 26 April 2001. 123 Ibid., para. 23. 124 Ibid., paras. 82–4. 125 OIK, Fourth Annual Report 2003–2004, 12 July 2004, 14–15. See J. Nilsson, ‘UNMIK and the Ombudsperson Institution in Kosovo: Human Rights Protection in a United Nations “Surrogate State” ’ Netherlands Quarterly of Human Rights 22 (2004): 389, 404.

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544 James Summers The UN Secretary-General had a right and also a duty to waive immunity if, ‘in his opinion, the immunity would impede the course of justice’,126 and a waiver would not prejudice the interests of the United Nations. The procedure to investigate alleged misconduct by civilian staff in the administrations was initially an UN-convened Board of Inquiry, which could recommend the exercise of a waiver to the SRSG, who passed this finding to the Secretary-General.127 Nonetheless, the Secretary-General retained a discretion when balancing these elements128 in deciding whether to exercise the waiver, though there has been consideration that it was obligatory in cases of child sex abuse129 and ‘serious breaches’ of international law.130 The waiver has been considered in cases involving both UNTAET and UNMIK staff. In Kosovo, immunity has been waived in cases of civilian police accused of rape and murder.131 However, as most staff immunities are functional, a waiver would be unnecessary if the behaviour was seen to fall outside the possible scope of ‘official’ acts. This distinction was made in East Timor in the case of two Jordanian policemen arrested for the alleged rape of a cleaner in their hotel. The SRSG, after a Board of Inquiry investigation, concluded that rape could not be considered as an ‘official’ act.132 This distinction was also raised when an UNMIK computer specialist was accused of involvement in the genocide in Rwanda, though, despite serious disagreement between UNMIK staff on this point, his immunity was ultimately waived by the Secretary-General.133 Nonetheless, this discretion has been a source of friction with the local population. In the case of a member of the UNTAET civilian staff who killed an East Timorese woman with his car in a hit-and-run incident, UNTAET initially refused to consider a waiver. This was reversed in the face of local opposition, but the individual was still released from custody and allowed to return to his native Finland.134

VI. Human Rights Jurisdiction Immunities also contribute to the paradoxical relationship that international territorial administration has with human rights jurisdiction. The protection of human rights has often been a central feature of these administrations.135 And yet, the consequence of establishing them is that a territory is removed from the authority of 126 ss. 20 and 23, Convention on Privileges and Immunities; s. 6.1, UNMIK Reg. 2000/47. 127 Rawski (n. 111), 114. 128 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion), [1999] ICJ Rep., paras. 50–61. 129 Children and Armed Conflict, UN Doc. A/56342-S/2001/852 (2001), para. 36. 130 Japan, UN Doc. BWC/AD HOC GROUP/WP.52 (1995), s. II, 2 (2). 131 Rawski (n. 111), 119. 132 Ibid., 120. 133 Ibid., 119–20. 134 Ibid., 120. 135 See para. 11(j), UNSC Res. 1244, 10 June 1999, establishing UNMIK; para. 12, UNSC Res. 1037, 15 January 1996, establishing UNTAES. UNSC Res. 1272, 25 October 1999, establishing UNTAET did not provide for human rights promotion or monitoring as part of its mandate, though human rights violations were cited as the context in which it was established.

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International Territorial Administration 545 states, which may be bound by human rights treaties, and replaced by that of international institutions, which are not. A basic feature of human rights treaties is their conferral of jurisdiction to States Parties for the protection of human rights, with the corresponding responsibility of those states if those rights are breached. However, if a state loses control over a territory, this relationship between jurisdiction and responsibility can be disrupted. In the European system, the European Court of Human Rights (ECtHR) has found that a State Party to the European Convention on Human Rights (ECHR) which has lost control of territory but still holds sovereignty over it retains jurisdiction.136 Nevertheless, it may not actually have responsibility for violations of rights due to this lack of control.137 In these scenarios, loss of territory has typically been due to another state, which has assumed ‘effective control’ over that area, such as Turkey in Northern Cyprus or Russia in Transniestria. Still, if the controlling state is also a party to the Convention, then it may have jurisdiction based on its control and potentially be held responsible.138 This, though, is not the case for UN bodies, which cannot be parties to the ECHR. This was precisely the effect of the establishment of UNMIK on Serbia and Montenegro, which became party to the ECHR in 2004. A report by UNMIK to the Human Rights Council in 2006 recognized the effects of this loss of state control, but also the fact that control had been assumed by an international organization incapable of being a party to the Convention: [A]s a consequence of UNSCR 1244, Serbia and Montenegro cannot be held responsible for an alleged violation of human rights arising from an act or omission attributable to UNMIK. UNMIK is, of course, not a High Contracting Party to the ECHR. It therefore follows that the people in Kosovo do not have an effective means of seeking redress for an alleged violation of human rights by application to the Strasbourg Court.139

There was, though, another aspect to jurisdiction under the ECHR. Some parties to the ECHR were major contributors of troops to the NATO-led KFOR security presence and staff in the UNMIK administration. The control asserted by these nationals might entail extraterritorial jurisdiction and responsibility for their respective states. This potential 136 See Ilaşcu v Moldova and Russia, App. No. 48787/99, 8 July 2004, para. 331: ‘[E]ven in the absence of effective control over the Transdniestrian region, Moldova still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to the applicants the rights guaranteed by the Convention.’ (para. 331). 137 See e.g. Catan and Others v Moldova and Russia, App. Nos. 43370/04, 8252/05 and 18454/06, 19 October 2012, paras. 102–10, 145–8. 138 Loizidou v Turkey, App. No. 15318/89, 18 December 1996, paras. 56–7; Cyprus v Turkey, App. No. 25781/94, 10 May 2001, paras. 75–80; Ilaşcu and Others v Moldova and Russia, App. No. 48787/99, 8 July 2004, paras. 386–94. 139 Report submitted by the United Nations Interim Administration in Kosovo to the Human Rights Committee on the Human Rights Situation in Kosovo since June 1999, 7 February 2006, UN Doc. CCPR/C/UNK/1, 29, para. 131.

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546 James Summers for jurisdiction was tested by the European Court in Behrami v France; and Saramati v France, Germany and Norway (2007). The Behrami complaint concerned two children, one of whom had been killed and the other maimed by unexploded cluster bombs that had not been defused by KFOR or UNMIK. Saramati involved a man detained by UNMIK police on the orders of a KFOR commander. The personnel involved were nationals of ECHR states and jurisdiction was claimed on that basis. The Court’s approach, however, represented a shift from the scope of extraterritorial jurisdiction140 to the responsibility of the UN as an international organization.141 It found that the actions of these personnel were, in principle, attributable to the UN rather than those states; consequently, it was unable to exercise jurisdiction ratione personae—the UN as a legal entity was not a party to the ECHR.142 In the case of UNMIK, this was simply because it was a subsidiary UN organ.143 In the case of KFOR, this was under the effective command of NATO with ultimate authority and control exercised by the UNSC under UNSC Resolution 1244. The fact that troop-contributing nations also retained control over their contingents did not undermine the authority of the UNSC and the United Nation’s responsibility.144 This reasoning was later applied not just to other complaints concerning Kosovo,145 but also to other international territorial administrations, including actions by the High Representative in Bosnia and Herzegovina, who also acted under a UNSC mandate.146 The consequences of States Parties delegating powers to an international organization outside ECHR jurisdiction had previously been considered and addressed by the Court. Its approach to this delegation of competence in Bosphorus (2005) was through the principle of ‘equivalent protection’.147 If the organization to which authority had been transferred protected rights in a way that was, at least, ‘equivalent’ (in the sense of being comparable)148 to the ECHR, there was a presumption of compliance. Bosphorus also concerned the implementation of a UNSC resolution. However, the Court in Behrami and Saramati distinguished the situation in Kosovo on two grounds. First, the acts in Bosphorus took place on a State Party (Ireland)’s territory and, second, were based on a 140 Cf. Banković on NATO’s campaign over Kosovo which preceded the establishment of UNMIK. Banković and Others v Belgium and Other, App. No. 52207/99, 12 December 2001, paras. 67–80. 141 See J. Klabbers, An Introduction to International Organizations Law, 3rd edn (Cambridge University Press, 2015), 321. 142 Behrami v France; and Saramati v France, Germany and Norway, App. No. 78166/01, 2 May 2007, paras. 121, 141, 143. 143 Ibid., paras. 142–3. 144 Ibid., paras. 132–41. 145 Ilaz Kasumaj v Greece, App. No. 6974/05, 5 July 2007, 2–3; Slavisa Gajic v Germany, App. No. 31446/02, 28 August 2007, 6. 146 Dušan Berić and Others v Bosnia and Herzegovina, App. Nos. 36357/04, 36360/04, 38346/04, 41705/04, 45190/04, 45578/04, 45579/04, 45580/04, 91/05, 97/05, 100/05, 101/05, 1121/05, 1123/05, 1125/05, 1129/05, 1132/05, 1133/05, 1169/05, 1172/05, 1175/05, 1177/05, 1180/05, 1185/05, 20793/05 and 25496/05, 16 October 2007, paras. 26–30. 147 Bosphorus Have Yollari Turizm ve Ticaret Anonim Şirketi v Ireland, App. No. 45036/98, 30 June 2005, para. 155. This expanded on earlier jurisprudence: see Matthews v United Kingdom, App. No. 24833/94, 18 February 1999, para. 32. 148 Bosphorus Have Yollari Turizm ve Ticaret Anonim Şirketi (n. 147), para. 155.

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International Territorial Administration 547 decision by state authorities.149 This situated jurisdiction over action on behalf of international organizations, especially under a UNSC mandate, within a national territorial context, not the extraterritorial one inherent in participation in an international territorial administration.150 Nonetheless, a jurisdictional issue remains over the degree of control that states maintain over their troops, even when placed at the disposal of an international organization.151 The Court has applied extraterritorial jurisdiction based on the control of territory by national contingents,152 even if formally placed under the command of officers from other states. This was the case in Jaloud v Netherlands (2014).153 However, this decision concerned Dutch troops in Iraq outside of a UN mission. It might be that a crucial element in limiting the extent to which national control by troop-contributing nations translates into human rights jurisdiction is a degree of deference by the Court to the global body, especially in its peace and security mandate. UNMIK has clearly recognized the existence of this ‘gap in human rights protection’154 in the territory under its administration. Nonetheless, while it has sought to engage with human rights treaty systems—including the ICCPR, ICESCR,155 and the Council of Europe with respect to the Framework Convention for the Protection of National Minorities,156 and European Torture Convention—this has largely been at a reporting level.157 Bodies in Kosovo with jurisdiction to hold UNMIK accountable for human

149 Behrami and Saramati (n. 142), paras. 151. 150 See G. Pazereckaite, ‘An Elephant in the Room: Scrutiny of the United Nations in the Practice of the European Court of Human Rights’, in J. Summers and A. Gough (eds.), Non-State Actors and International Obligations (Leiden: Nijhoff, 2018), 206–21. 151 See A. Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’, Human Rights Law Review 8 (2008): 151, 163–8; N. D. White, The Law of International Organisations, 3rd edn (Manchester University Press, 2017), 239–41. 152 See e.g. Al-Skeini and Others v United Kingdom, App No. 55721/07, 7 July 2011, paras. 136–40, 149–50. 153 ‘[T]he fact of executing a decision or an order given by an authority of a foreign State is not in itself sufficient to relieve a Contracting State of the obligations which it has taken upon itself under the Convention . . . The respondent Party is therefore not divested of its “jurisdiction”, within the meaning of Article 1 of the Convention, solely by dint of having accepted the operational control of the commander of MND (SE), a United Kingdom officer. The Court notes that the Netherlands retained “full command” over its military personnel, as the Ministers of Foreign Affairs and of Defence pointed out in their letter to Parliament.’ Jaloud v Netherlands, App No. 47708/08, 20 November 2014, para. 143. 154 UNMIK Report (n. 139), 29, para. 131. 155 Report by the United Nations Administration in Kosovo, UN Doc. E/C.12/UNK/1, 15 January 2008. 156 Agreement between the United Nations Interim Administration Mission in Kosovo (UNMIK) and the Council of Europe on technical arrangements related to the Framework Convention for the Protection of National Minorities, 23 August 2004, https://www.coe.int/en/web/minorities/unmik/kosovo. 157 An Agreement with the Council of Europe also allowed for inspection of detention facilities. See Agreement between the United Nations Interim Administration Mission in Kosovo and the Council of Europe on technical arrangements related to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 23 August 2004, https://www.coe.int/en/web/ cpt/kosovo.

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548 James Summers rights violations were created by UNMIK itself, and without an independent mandate it could tailor them (and re-tailor them) according to its interests. The most significant of these interests was the defence of the immunities of the organization and its staff. UNMIK, in its report to the Human Rights Committee considered that this necessarily set limits on the powers of any human rights body in Kosovo: The creation of a judicial body that would issue binding decisions on UMIK would be problematic from the perspective of privileges and immunities of UNMIK and its personnel, their possible exposure to liability and the importance of not compromising the discretion of the institutions of the United Nations to interpret the mandate of UNMIK under UNSCR 1244.158

The ECtHR has considered that protection of the immunities of international organizations could be a legitimate aim as long as the organization provided that ‘reasonable alternative means’ to provide effective rights protection.159 Nonetheless, there are questions about whether the human rights bodies established under UNMIK provided such means, due to limits on their independence and their powers. The first of these was the Ombudsperson Institution in Kosovo created in June 2000, with an ombudsperson appointed by the SRSG160 to investigate complaints of human rights violations or abuse of authority by the civil administration (not KFOR) and local institutions.161 However, the Ombudsperson’s findings were only recommendatory.162 UNMIK had no obligation to comply with them or indeed cooperate with the institution.163 OIK Reports repeatedly referred to a lack of cooperation.164 The result, the Ombudsperson noted, was as ‘a paradox, whereby those entities that are in Kosovo to 158 UNMIK Report (n 139), 29–30, para. 132. 159 Waite and Kennedy v Germany, App. No. 26083/94, 18 February 1999, paras. 63, 68–9, 73. 160 See ss. 6.2 and 8.2, UNMIK Reg. 2000/38, 30 June 2000. 161 s. 3, UNMIK Reg. 2000/38. 162 s. 4, UNMIK Reg. 2000/38. 163 M. G. Brand, ‘Institution-Building and Human Rights Protection in Kosovo in Light of UNMIK Legislation’, 70 Nordic Journal of International Law (2001): 461. 164 ‘The Ombudsperson, although not competent to investigate into complaints against KFOR, is currently the only legal instrument constituting a human rights protection mechanism. He has jurisdiction to oversee both the work of the UNMIK administration and the local provisional governing bodies, but there are still many practical and legal obstacles that keep him from exercising this mandate in the best possible way. One of these has been the lack of adequate cooperation of UNMIK with the Ombudsperson Institution, in particular, but not only in cases involving UNMIK Police.’ OIK, Fourth Annual Report 2003–2004 (n. 125), 16. See also OIK, Fifth Annual Report 2004–2005, 11 July 2005. See also Human Rights Committee: ‘The [Human Rights] Committee notes with concern that UNMIK and PISG have not always extended due cooperation to the Ombudsperson Institution, especially as regards interim measures requests by the Ombudsperson. The Committee, noting that UNMIK Regulation 2006/6 limits the jurisdiction of the new Ombudsperson to be appointed by the Assembly of Kosovo to acts and omissions of PISG, expresses concern that the Human Rights Advisory Panel established under UNMIK Regulation 2006/12 to receive and examine complaints against UNMIK lacks the necessary independence and authority.’ Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), para. 10.

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International Territorial Administration 549 help preserve human rights and the rule of law are themselves not answerable to the very persons they are obliged to protect’.165 In 2006, UNMIK limited the Ombudsperson’s jurisdiction to local institutions.166 Instead, potential UNMIK human rights violations were to be addressed by a threemember, quasi-judicial body, the Human Rights Advisory Panel (HRAP), which could examine complaints and make recommendations over any breaches by the administration.167 These recommendations were to be communicated to the SRSG, who, it was specified, retained a complete discretion as to whether to act on them.168 The rights protected were contained in eight human rights instruments,169 though the most commonly used were those in the ECHR and its protocols.170 The Panel’s territorial jurisdiction covered the whole of Kosovo, though its temporal jurisdiction was notably limited to human rights violations occurring no earlier than 23 April 2005.171 This was significant as it omitted the first five-and-a-half years of UNMIK and only left a limited period for effective remedies as the administration would lose governmental control after Kosovo’s Declaration of Independence on 17 February 2008. In its Olga Lajović v UNMIK decision in July 2008, HRAP was able to expand this mandate to include earlier violations that continued up to 23 April 2005.172 Nonetheless, other claims were excluded on a temporal basis, including one by Agim Behrami, following the failure of his petition before the ECtHR.173 Lacking an independent basis, though, the HRAP was open to interference from UNMIK. This became evident in the case of Balaj and Others v UNMIK, which involved the suppression of a violent protest on 10 February 2007 by Romanian UNMIK police. Tear gas and rubber bullets fired into the crowd led to two deaths and wounded over eighty others. Two separate reports by a special prosecutor found that these deaths were avoidable. The HRAP initially declared the complaint admissible in June 2008.174 165 OIK, Fourth Annual Report 2003–2004 (n. 125), 16. 166 s. 1.3, UNMIK Reg. 2006/6, 16 February 2006. 167 See UNMIK Reg. 2006/12, 23 March 2006. 168 See s. 17.3, ibid.: ‘The Special Representative of the Secretary-General shall have exclusive authority and discretion to decide whether to act on the findings of the Advisory Panel.’ 169 See s. 1.2, ibid.: (1) The Universal Declaration of Human Rights 1948; (2) The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 and the Protocols thereto; (3) The International Covenant on Civil and Political Rights 1966 and the Protocols thereto; (4) The International Covenant on Economic Social and Cultural Rights 1966; (5) The Convention on the Elimination of All Forms of Racial Discrimination 1965; (6) The Convention on the Elimination of All Forms of Discrimination Against Women 1979; (7) The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984; and (8) The Convention on the Rights of the Child 1989. 170 C. Ryngaert, ‘The Accountability of International Organizations for Human Rights Violations: The Cases of the UN Missions in Kosovo (UNMIK) and the UN “Terrorism Blacklists” ’, in M. Fitzmaurice and P. Merkouris (eds.), The Interpretation and Application of the European Convention of Human Rights (Leiden: Martinus Nijhoff, 2013), 73–91, 77. 171 s. 2, UNMIK Reg. 2006/12. 172 HRAP, Olga Lajović v UNMIK (Decision on Admissibility), Case No. 09/08, 16 July 2008, para. 7. 173 HRAP, Agim Behrami v UNMIK (Decision on Admissibility), Case No. 24/08, 17 October 2008, paras. 11–14. 174 HRAP, Kadri Balaj and Others v UNMIK (Decision on Admissibility), Case No. 04/07, 6 June 2008.

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550 James Summers In response, the SRSG issued Administrative Direction 2009/1 on 17 October 2009.175 This Direction was intended to modify the structure of proceedings in the HRAP, requiring that they should be conducted in a non-adversarial manner.176 Moreover, the Direction set limits on the admission of complaints by the HRAP. It had previously required the exhaustion of remedies as a requirement for admissibility, but the Direction specified that these issues should be examined at any stage of the proceedings, reopening the Balaj decision.177 It then specified that the UN Third Party Claims Commission was available for such claims.178 This commission was an administrative body capable of determining compensation over: ‘Third party claims for property loss or damage and for personal injury, illness or death arising from or directly attributed to KFOR, UNMIK or their respective personnel and which do not arise from “operational necessity” of either international presence.’179 With admissibility thus redirected, the Direction then set a temporal limit for further claims before the HRAP. The Panel could not consider complaints submitted later than 31 March 2010.180 The HRAP, acting within these limitations, declared the case inadmissible in 2010, though it noted that non-exhaustion of remedies was only a temporary restriction on admissibility. Consequently, it highlighted the potential for the claimant to resubmit their claim once these processes had been concluded.181 Indeed, once the claims process was exhausted in May 2012, the Panel reopened proceedings, dismissing objections by the SRSG that the 31 March 2010 cut-off date precluded this.182 In its opinion on 27 February 2015, it found a substantive violation of the right to life by UNMIK as well as a procedural violation by failing to carry out an effective investigation and a breach of the right to peaceful assembly. It concluded that ‘failure to protect lives constitutes serious violation of human rights . . . [and] that UNMIK as the territorial administration in Kosovo from 1999 to 2008 had primary responsibility for such protection’.183 However, by this stage, the context for human rights enforcement had already radically changed. With Kosovo’s unilateral declaration of independence in 2008, UNMIK’s powers were severely curtailed and with them the ability to give effective remedies to human rights violations.184 The time frame for UNMIK to address its own human rights issues ultimately proved to be limited. The HRAP provided a model for the European Union’s EULEX mission, which became operational on 9 December 2008 succeeding UNMIK in many areas of policing, justice, and border control, and with a similar supervisory regime. Complaints over potential human rights violations by EULEX personnel since 9 December 2008 can be submitted to the Human Rights Review Panel (HRRP), if the complaint is within six months of the 175 Administrative Direction No. 2009/1, 17 October 2009. 176 s. 1, ibid. 177 s. 2.1, ibid. 178 s. 2.2, ibid. 179 s. 7, UNMIK Reg. 2000/47, 18 August 2000. 180 s. 5, Administrative Direction No. 2009/1. 181 HRAP, Kadri Balaj and Others v UNMIK (Decision on Admissibility), Case No. 04/07, 31 March 2010, para. 55. See A. Momirov, ‘Local Impact of “UN Accountability” under International Law: The Rise and Fall of UNMIK’s Human Rights Advisory Panel’, International Peacekeeping 19 (2012): 3, 9–13. 182 HRAP, Kadri Balaj and Others v UNMIK (Decision on Admissibility), Case No. 04/07, 11 May 2012, paras. 47–54, 84. 183 HRAP, Kadri Balaj and Others v UNMIK (Opinion), Case No. 04/07, 27 February 2015, para. 270. 184 Ibid., 271.

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International Territorial Administration 551 asserted breach. The HRRP has jurisdiction over the rights proclaimed in the same instruments as the HRAP and its decisions are likewise limited to non-binding recommendations. Additionally, its recommendations cannot be the basis for monetary compensation.185 Lacking binding decision-making, the HRRP has been dependent on the willingness of EULEX to engage with its recommendations, though studies suggest this has been relatively good.186 Outside Kosovo, human rights jurisdiction over international territorial administration has been less developed. UNTAET in its first regulation, 1999/1 on 27 November 1999 adhered to the same international human rights standards as UNMIK.187 Nonetheless, without an independent legal basis for those obligations, the standards adopted in one regulation could be modified in another, on the basis of expediency. This is illustrated with UNTAET Regulation 2001/22 of 10 August 2001, which established the East Timor Police Service. Initial drafts required police officers to meet international standards only ‘where practicable’, due to concerns over available funding and resources.188 This formula was not included in the final regulation, but still underlined the potential of UNTAET to deviate from human rights on the same basis it adhered to them. UNTAET, like UNMIK, established an Ombudsperson Office to make non-binding recommendations on acts by the administration though, unlike the Kosovo mission, its mandate was not defined by a regulation.189 The office only became operational s eventeen months into the mission, in May 2001, twelve months before it terminated.190 It was generally seen to be ineffective.191 No human rights monitoring body exists for the Office of the High Representative in Bosnia and Herzegovina.192

VII. Conclusion International territorial administration reflects the interplay between the basic features of states and international organizations, and how those roles can be inverted as those organizations become the government of a territory. This type of administration is by 185 Human Rights Review Panel, Briefing Note, http://hrrp.eu/briefing.php. 186 See G. Visoka and J. Doyle, ‘Peacebuilding and International Responsibility’, International Peacekeeping 21 (2014): 673, 684–8. 187 See s. 2, UNTAET Reg. 1999/1, 27 November 1999. 188 J. Morrow and R. White, ‘The United Nations in Transitional East Timor: International Standards and the Reality of Governance’, Australian Yearbook of International Law 22 (2002): 1, 12–13. 189 E. de Brabandere, ‘Immunity as a Guarantee for Institutional Autonomy’, in R. Collins and N. D. White (eds.), International Organisations and the Idea of Autonomy (Abingdon: Routledge. 2011), 278–96, 290–1. 190 UNTAET Daily Briefing, 1 June 2001, https://reliefweb.int/report/timor-leste/untaet-daily-briefing01-jun-2001. 191 S Chesterman (n. 6), 149–50. 192 J. M. Beneyto, ‘Accountability of International Organisations for Human Rights Violations’, Council of Europe Doc. 13370, 17 December 2013, 17, para. 60.

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552 James Summers nature exceptional, but raises important legal questions for international organizations when they take on governing roles. There are three issues, in particular, in relation to their jurisdiction. First, while the law used by international administrations originated from an international mandate, it was typically heavily dependent on local national law. The experience from Kosovo and East Timor suggests the importance of selecting the most appropriate law from the beginning. The Brahimi Report in 2000 recommended that the UN develop an interim legal code, ready for use when establishing an administration, pending a more considered determination of the applicable law.193 However, this suggestion proved politically contentious and did not progress.194 The Kosovo Criminal Code might provide one model, though the idea of a single workable template is problematic. Language and culture proved major barriers from both local and international perspectives in creating a functioning legal system, as well as the failure to effectively consult with representatives of the population. One of the issues with determining the law, though, was the need for it to be appropriate to local circumstances, something that requires effective consultation with representatives of the population and means that the legal system will inevitably be bespoke. Second, deference to national law does not need to apply to international crimes. Universal jurisdiction can be applied and the ICC Statute provides a codification of the crimes which could be readily utilized. This would avoid attempting to extract these crimes from national definitions, which creates unnecessary difficulties. In terms of relations with other international criminal bodies, the main body in question will be the ICC, though its relevance, short of a UNSC referral, depends on whether the states in question are parties to its statute. In any case, the Kosovar and East Timorese experience suggests that local hybrid local tribunals might be more effective if significant numbers of perpetrators are involved and if those tribunals are properly resourced. Third, there is a relationship with immunities and human rights jurisdiction. These immunities are likely to remain essential to the organizations, as the tasks of international administrations in rebuilding broken and unstable political entities are inherently hazardous. A significant feature of human rights protection, though, is the importance of independent bodies to maintain them. In UNMIK and UNTAET all powers flowed from the SRSG, but in the case of human rights supervision, an independent mandate from the beginning would be important. In terms of existing human rights frameworks, the degree of the control of troop-contributing nations in human rights jurisdiction and how this is reconciled with maintenance of peace and security remains an area in development.

193 Report of the Panel on United Nations Peace Operations, UN Doc. A/55/305–S/2000/809, 17 August 2000, paras. 79–83. 194 Miller (n. 29), 22.

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Index

A

abortion law 173 access to justice 232, 336, 340–2 accountability 16, 87–8, 224, 301, 313–14, 316, 328 acta iure gestionis 230–1 acta iure imperii 230–1, 235–7 active personality principle 6 Actor Network Theory 164 adjudicative jurisdiction discretion 340 ICJ 457–8 Lotus case (PCIJ) 41, 51 Nuremberg Military Tribunal (NMT) 516 prescriptive jurisdiction, separation from 332, 343, 344–9, 354 private interests and private law 336, 340, 343, 353 regulation 13 state immunity 231, 478–9 state responsibility 16 textbooks 458 Adrian IV, Pope 36 affect 164, 178–80 legal genres 164, 178, 180 literary genres 164, 179–80 moods 164, 179 nuclear families in North America, myth of 180 passion 178 African colonies 62–3 Ahdieh, Robert 153 Ahmed An-Na’im, Abdullahi 107–8 Akande, Dapo 507, 510 Alexander III, Pope 36 Algeria/France conflict 486 Amerindian nations 165–7 amnesties 155–6

anthropocentric legal order 11, 89, 91 anthropology 105, 122, 173, 175–8 Antoninus Pius, Roman emperor 27–34, 37 Anzilotti, Dionisio 48, 54 arbitration in investment disputes 447–51 academic literature 449–50 investor-state arbitration 448, 450 state-state arbitration 448–51 Arendt, Hannah 192–5 Argentina 155–7 Armenian genocide 151 Art, Steven E 214 Augustus 30 Austin, John 47, 101, 103–4 Australia colonialism 67, 165 indigenous people 67, 165, 177–8, 203–4 Kombumerri and Munaljarli jurisprudence 202–3 migration law and materiality of means of transport 175 Wiradjuri scholarship 203–4 aut dedere aut judicare principle 262–3, 279–82, 291–2, 298, 478 authority beyond the state, moving 186 character and transmission 13 claims of authority 185–91 conduct of lawful relations 13–14, 183, 191 critical approaches 13, 185–91, 204–5 dialectical history 187–8 institutional arrangements and practices 189–90 jurisconsults 191 jurisprudents, role of 188, 191 jurists, role of 186–91, 204 language 187 method and discipline, questions of 191

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554 index authority (cont.) papal authority 36 primacy of state authority 8, 117, 433 reduction in state authority 446 relative authority theory 19, 137–40, 159 ‘speak the law’, power or authority to 13, 122, 183, 229 state-centred authority 186, 432 technicism 187–8 utopian juristic promise 187

B

Bakhtin, Mikhail 162, 164, 179–80 Bandinelli, Rolando 36 Barbie, Klaus 152 beginnings of state jurisdiction in international law until 1648 25–39 case studies 10, 26 groups, jurisdiction over 28 individuals, jurisdiction over 28 ius civile (civil law) 26–7 ius gentium (law of all nations) 26–7 legal privilege 26 medieval practices 10, 26, 35–7 personality principle 10, 26–8 premodern legal doctrine in the formation of state jurisdiction 37–9 property 26 Roman law 10, 26–35 state authority 10, 26 state sovereignty, evolution of 10, 26–7, 39 territorial principle (Roman law) 26–8, 31–5, 39 universal jurisdiction 10, 26–8, 35–7 Westphalian legal order 10 Belgium cloud computing 17, 383, 402–9 Microsoft Warrant case (Belgian Supreme Court) 17, 383, 402–9 Yahoo! case (Belgian Supreme Court) 17, 383, 401–2 Bentham, Jeremy 47 Benton, Lauren 66, 68, 71, 74–5 Berman, Paul Schiff 101, 106 Birla, Ritu 172 Black, CF 202–3

Bodin, Jean 45–6, 230 borders capital, ring-fencing 16, 301 crossing borders 125–6 dual nature of territory and borders 303–5 English corporate cross-border tort litigation 313 extraterritoriality in US law, presumption against 16, 303, 308–13 geographical borders 5 globalization 16, 301, 307–27 judiciary as border guards 308 leakages of capital 16, 301, 307–27 maps 125 open borders 302 power, delimitation of boundaries of 304 regulatory law 308–13 scale 170 territorial jurisdiction 16, 301, 303–27 Bosnia-Herzegovina, Office of the High Representative of (OHR) 531, 533, 551 boundaries see borders bounded communities 148–9 Boutros-Ghali, Boutros 488 Brenner, Neil 167–8 Brierly, James 461, 467 British Empire Australia 67 China, unequal treaties with 71 common law 80 courts, establishment of 75 East India Company 75–6 Hindu law 65 India 65, 75–6, 172, 176 New Zealand 67 Maori customs and practices 67 pluralism 75 Privy Council 80 rule of law 74 Treaty of Waitangi 67 white lawlessness 75 Brownlie, Ian 357 Bulgarus 36–7 Bush, George 488 bystander states 212, 214–18, 221–2, 225 Byzantine emperors and popes 35–7

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index 555

C

Cambodia 77 Canada colonialism 166 indigenous/native title litigation 165, 177–8 state sovereignty 166 capital globalization 15–16, 301, 303, 307–27 leakages of capital 16, 301, 307–27 ring-fencing 15, 301, 308 rise of capitalism 172 Caracalla (Marcus Aurelius Severus Antonius Augustus), Roman Emperor 32–4 Cassius Dio 33 categorical imperative 83–6 Catholic Church 189–91 Cavaglieri, Arrigo 48, 54 Charlemagne, Holy Roman Emperor 35–6 Charter of the UN Chapter VI 484, 486–7 Chapter VII 484–6, 501, 520–2, 524 countermeasures 375 criminal jurisdiction 20, 519–22, 524 excessive jurisdiction 361 extraterritoriality 367–9 Security Council (UN) 20, 482–9, 492–7 state immunity 247 state responsibility 367 children 416, 491 Chile 73, 156–7 China, unequal treaties between British Empire and 71 choice of law 37, 131–2, 135–6 Christians 60–1, 171–2, 189–91 Cicero 31 Ciepley, David 171 citizenship 26, 32–4, 39, 61–2, 83 civil and political rights 415–16, 422, 426–7 civil society 20, 151, 167, 172, 414, 490, 503 civilians in armed conflict, protection of 489–92 classification 13, 102–3, 104–11 cloud computing and enforcement of criminal jurisdiction 381–410 allocation of jurisdiction 384

blurring of online and offline criminality 387–8 CLOUD Act 2018 (United States) 335, 383, 406–9 coercive power 395–9 consent to jurisdiction 384–5, 393 cross-border data storage 17, 381–5, 389 Cybercrime Committee (Cybercrime (Budapest) Convention 2001 17, 383, 386–7, 390–402 Cloud Evidence Group (CEG) 396–7, 401–2 production orders 408–9 substantive rights 392 territorial exception 391–3 Trans-Border Access Group (TAG) 393–6, 401 data protection 387–8, 405–6 deterritorialization 127 disclosure of data 402–9 disposal approach, power of 394–5 EU competition law 399 extraterritoriality 381–5, 392–402, 405–6, 409–10 historical approach 385 human rights 390, 392, 394 impacts of Cloud Computing 388–90 inspection orders 399 law enforcement agencies (LEAs) 387, 389–97 legality, principle of 396 limits to jurisdiction 17 loss of location principle 385–6, 389–96, 401 Lotus case (PCIJ) 385, 395 Microsoft Warrant case (Belgian Supreme Court) 17, 383, 402–9 CLOUD Act 406 Court of Appeal decision 402–4, 406–7 data protection 405–6 disclosure of data located in Ireland 402–9 extraterritoriality, presumption against 405–6, 409 physical enforcement activity 404 privacy 403, 405 production orders 408 state sovereignty 403, 406, 409

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556 index cloud computing (cont.) Stored Communications Act 1986 (SCA) 402–8 subpoenas 404 territorial jurisdiction 404, 406 warrant, definition of 403–4 Mutual Legal Assistance Treaties (MLATs) 385–6, 389–93, 400, 403–4, 408–9 non-intervention principle 384–5 notion of the Cloud 386–7 phenomenon of cloud computing 386–90 positive obligations 17, 381, 386 prescriptive jurisdiction 384–5, 397–8 privacy 386, 403, 405 production orders 397–401, 408 regulation 384, 388 remote searches 394–5 rule of law 17, 381 self-incrimination 391 sovereign authority 409–10 sovereign equality 409–10 state sovereignty 403, 406, 409 Stored Communications Act 1986 (SCA) 402–8 subpoenas 404 territorial jurisdiction 17, 381–94, 398, 404, 406 unilateral trans-border access 393–6 unilateral trans-border activity where location of data is known 397–401 United States 383, 386, 388–9, 406–9 universal jurisdiction 395 volume of criminality 386 warrant, definition of 403–4 Yahoo! case (Belgian Supreme Court) 17, 383, 401–2 codification projects 230 coercion 85, 86–7, 90 diffuse jurisdictions 101, 104–5, 108 recognition of norms 114–15 state immunity 231 Coke, Edward 140–1 Cold War 20, 482–6, 488–90, 503 collective action 219–20 colonies 59–80, 166 see also British Empire; indigenous people

Africa 62–3 Australia 67 British Empire 61–2, 65–7, 71, 74–6, 80 China, treaties with 70–1 Christians and non-Christians 60–1 common law 80 concessions 69–70 Congress of Berlin 62 courts, establishment of 75 declarations of jurisdiction 62 decolonization 200–2 Dutch colonialism 78–9 Dutch East India Company (VOC) courts 78–9 effective occupation 62 ethnic autonomy 66 European concept of jurisdiction 59–80 extraterritoriality 69–72, 78 France 61–2, 76–8 gunboat diplomacy 71 India 65, 75–6 Islamic jurisdictions 64–5 Japan 62, 71 judicial activism 72 legal peripheries 67–8 lex domicilii 66 lex situs 66 Maori customs and practices 67 maps 169 military conquest 60–1, 63 modern imperial jurisdictions 65–9 monopolies on commerce 61, 63 national identity 225 Native Americans 60–1, 71 Netherlands 61, 78–9 opium 71 Ottoman Empire 70, 80 papal donation 61 Peace of Westphalia 60 piracy 68 pluralism 69, 75 politics 71–2 Portugal 60–1, 72–4 postcolonial legacy 79–80 post-colonial legal studies 169 Privy Council 80 public/private division 65

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index 557 religion 60, 64–5 Roman law 61 rule of law 74 sea, rights over the 61 seizure of property and land 60, 66 Shanghai International Settlement 70 Siam 62 slavery 73 sovereignty 67, 165 Spain 60–1, 72–4 terra nullius 61, 66 territorial jurisdiction 10, 60–3, 66, 79–80 transnational corporations (TNCs) 318 Turkey 62 Westphalian sovereignty, export of 61–4 Zomia 68 comity 93, 193, 232, 316, 334 command theory 102–3 common interests 92–3, 210–11, 223, 523 communications technology 15–16, 127, 159, 301 competence compétence de la compétence 513–14 criminal jurisdiction 20, 513–14 jurisdiction, definition of 4 Security Council (UN) 20, 484–6, 494 treaties 254 competition 215–16, 399, 433, 443, 451 complementary jurisdiction 217, 218, 526 concessions 69–70 concurrent jurisdiction 425–6, 429–30, 434 conduct of jurisdiction 192–9 conduct of lawful relations 13–14, 183, 198–9, 205 Congress of Berlin 62 connecting factors additional factors 349–51 adjudicative jurisdiction 344–9 applicable law 349–50 choice of law 350 domicile 349 investment 434 nationality 349–50 party autonomy 350 personal aspects 350 prescriptive jurisdiction 332 private interests and private law 349–51

regulation 457 residence 349 territorial jurisdiction 349–50 universal jurisdiction 14 conscience 190–1, 194, 197 consent to jurisdiction cloud computing 384–5, 393 criminal jurisdiction 506, 508–12, 520, 523 excessive jurisdiction 361–3 extraterritoriality 374–5 implicit consent 133–4 Lotus case (PCIJ) 49–50 republicanism, spirit of 87 territorial administration 532 constitutional state 11 contestation 145–53, 155, 159–60 context 13, 17–21, 82, 302 continuing wrongful acts 367, 372–3 Convention on the Rights of the Child 1989 416 cosmopolitan jurisdiction and the national interest 209–27 abstract cosmopolitanism 226 allocation of the exercise of jurisdiction 212–18 bystander states 212, 214–18, 221 coercion 144 collective action 219–20 complementary or subsidiary jurisdiction 217, 218 contestation 153 discretionary jurisdiction 212, 216 free riders 213, 215–16, 219 jurists, role of 187–8 Kant 11, 82–3, 89, 91, 93–5 limits of cosmopolitan action 212 natural law 144–5 nexus, presence of a 212–18 non-exercise of jurisdiction 212 piracy, non-prosecution of 213–14, 220 pluralism 122, 142–5, 153, 159 positivism 214–15 rational choice theory 212–13 realism 211–12, 218, 221 regulation 211–12 state sovereignty 210, 227 territorial jurisdiction 14, 142–4, 210

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558 index cosmopolitan jurisdiction (cont.) universal criminal jurisdiction 142–3, 210–14, 217, 219–20, 222–7 countermeasures 375–8 excessive jurisdiction 363–5 nationality 364 necessity 363–4 proportionality 363–4 reciprocity 364 remedies 376–8 state-centric approach 375–6 state responsibility 375–8 territorial enforcement 375–6 third party interests, effect on 364–5 Cover, Robert 144, 154–5 Crimean War 66 crimes against humanity 179–80, 192–5, 297, 478–9, 516 criminal jurisdiction 504–28 see also cloud computing and enforcement of criminal jurisdiction; genocide; Nuremberg Military Tribunal (NMT); war crimes active personality principle 6 bilateral treaties, tribunals established by 521–3 Chapter VII 20, 519–22, 524 civil society 20 collective conferral 509 competence 20, 513–14 consent to jurisdiction 506, 508–12, 520, 523 crimes against humanity 179–80, 192–5, 297, 478–9, 516 customary international law 513 delegated jurisdiction 506–7, 509–10, 513, 525 discretion 521 domestic criminal jurisdiction, relationship with 505–6 execution of sentences 505 foundations 506–13 general principles of international law 509 ICC 20–1, 507–8, 511, 514, 523–7 ICTR 508, 518–19, 527 ICTY 508, 511–12, 514, 518–20, 527 impunity 6, 513, 527 individual conferral 509

inherent jurisdiction 508, 510–11 international courts and tribunals 20, 506–28 bilateral treaties, tribunals established by 521–3 compétence de la compétence 513–14 occupying powers, establishment of 514–18 Security Council, tribunals established by the 518–21, 527 judiciary, perspective of 513–26 legal positivism 509, 511 Lotus case (PCIJ) 49–53 mandate as the foundation of international criminal jurisdiction, international community 510–13 multinational national treaties, tribunals established by 523–6 Nuclear Tests case (ICJ) 510–11 nullen crime sine lege 521 occupying powers, establishment of courts and tribunals 514–18 pacta tertiis principle 509 peace, crimes against 516 personal jurisdiction 506, 512, 522 prescriptive jurisdiction 16, 357–65 private interests and private law 16, 339 provisional rules of procedure 20 qualitative threshold 512–13 quantitative threshold 512–13 Security Council, tribunals established by the 518–21, 527 sentencing 505, 520 sources of law 514, 518, 523 spacetime 174 state responsibility 16, 355–80 state sovereignty 505–6, 509–10, 523 subsidiary organs of international organizations 509 supranational criminal jurisdiction 505–6 terminological and conceptual choices 506–8 territorial administration 21, 537–42 territorial jurisdiction 526 theoretical foundations 20 transferred jurisdiction 506–7, 512, 519, 527–8

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index 559 treaty organs 509 universal jurisdiction 14, 332–3, 342–3, 508, 513, 522–3, 527 critical approaches 12, 182–205 analytical approach 13 authority and authorization of lawful relations 13, 185–91, 204–5 conduct of jurisdiction 192–9 conduct of lawful relations 13–14, 183, 198–9, 205 Critical Legal Studies (CLS) 12 encounters between peoples, nations, and legal regimes 13, 199–204 jurisprudents 183–4, 188, 199 pluralism 200, 202–4, 205 technical forms and means 197–9 training in conduct of office of jurists 184–5, 188, 191, 204–5 universal jurisdiction 192–9 critical geography 123–4 critique of pure reason 85 culture change 128–37 diasporas 125–6 economic, social and cultural rights 414, 416, 426–30, 452–3 pluralism 128–37 rural areas to urban mega-centres, migration from 129 space, cultural construction of 129–31 territorial administration 552 Culver, Keith 138 customary international law classification 107 criminal jurisdiction 513 diffuse jurisdictions 13, 100–2, 106 erga omnes obligations 93, 240 extraterritoriality 310 genocide 15, 269 ius cogens 231, 234, 235–46 non-state law and state law, boundaries between 107, 110, 111, 119–20 presence of defendants 478 recognition of norms 111–15 Red Cross study 283–5 sanctions 104, 498–9 sea, law of the 28–31

state immunity 15, 230, 235–6, 238–9, 242–3, 247, 249 state responsibility 357 Torture Convention 293, 295–6, 298 treaties 15, 254, 298 war crimes 283–5 Cutler, A Claire 439–40 Cybercrime Committee (Cybercrime (Budapest) Convention 2001 17, 383, 386–7, 390–402 Cloud Evidence Group (CEG) 396–7, 401–2 production orders 408–9 substantive rights 392 territorial exception 391–3 Trans-Border Access Group (TAG) 393–6, 401 Czechoslovakia, coup in 485

D

Darusman, Marzuki 157 data protection 387–8, 405–6 data storage 17, 381–5, 389 de Certeau, Michel 168–9 declarations of jurisdiction 62, 459 definition of jurisdiction see jurisdiction, definition of del Ponte, Carla 537 delegated jurisdiction 506–7, 509–10, 513, 525, 527 democratic legitimacy 86–9 deterritorialization 126, 127–8, 129, 137, 145–6, 160 dialectical history 187–8 diaspora communities 224 diffuse jurisdictions 99–120 classification 13, 102, 104–6 coercion 101, 104–5, 108 context 13 customary international law 13, 100–2, 106 human rights 100, 106, 107–8 indigenous communities 100, 106 law, concept of 102–6 multiplicity of normative legal systems 100 non-state law and state law, boundaries between 100, 103–20 regulatory forms as state law 13 religious law 13, 100–2, 105–6

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560 index diplomatic and consular protection 6, 419 Disabilities Convention 2006 416 discretion 212, 216, 260, 271, 521 disputed areas 426, 531 domestic law criminal jurisdiction 505–6 ICJ 20, 458–9, 461–9 international law and domestic law, interaction between 15, 247–9 nationality 6 reserved domain of domestic jurisdiction 20, 458–9, 461–9 Roman law 29, 34 supremacy of national law 248–9 territorial administration 11, 531–7, 552 Duara, Prasenjit 79 due diligence 422–3, 425 due process 336, 340 Durkheim, Émile 174

E

East Timor 151, 157 see also UNTAET (UN Transitional Administration in East Timor) ECHR see European Convention on Human Rights (ECHR) economic integration 15–16, 301 economic, social and cultural rights 414, 416, 426–30, 452–3 effective control over territory 418–19, 425, 545 effects principle 14, 127 Egypt 76 Eichmann, Adolf 192–4, 199, 223, 268 encounters between peoples, nations, and legal regimes 13, 199–204 enforcement see also cloud computing and enforcement of criminal jurisdiction adjudicative jurisdiction 344–6 case study 366–72 contestation 152–3 continuing wrongful acts 367, 372–3 countermeasures 375–8 excessive enforcement jurisdiction 372–8 extraterritoriality 140–1, 366–79 Harvard Law School. Draft Convention on Jurisdiction with Respect to Crime 374–5

holistic perspective 373 human-centric perspective 365–6, 370, 373, 375, 378–80 human dignity 378–9 human rights 367–8, 371–3 ICTY 519 impunity 380 Jewish law, enforcement of agreements based on 107 Kant 85, 92 Lotus case (PCIJ) 41, 51 non-state law and state law, boundaries between 117–19 piracy 273–4 prescriptive jurisdiction 332–3, 379, 457–8 presence of accused 366–79 private interests and private law 332 regulation 13, 457 remedies 376–8 rule of law 378–9 sanctions 498–501 sentences 505 state-centric perspective 365–7, 370, 372–3, 377, 379–80 state immunity 229, 246 state responsibility 16, 365–80 substantive law 365–6 territorial jurisdiction 365–80 universal jurisdiction 378–9 wrongfulness, circumstances precluding 373–5 epistemology of international law 42–4, 178 erga omnes obligations 93, 240 etymological origins of jurisdiction 13 EU law Brexit 137 CJEU and member states, conflicts between 11–12 cloud computing 399 competition law 399 criminal jurisdiction 528 forum non conveniens 317 German Constitutional Court and CJEU, dispute between 11 Kadi/Kadi II case 501–2 Kiobel case 342 sanctions 501–2

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index 561 EULEX 531–2, 550–1 European Convention on Human Rights (ECHR) civil and political rights 416 ECtHR 19, 414, 417–26, 429 equivalent protection 546–7 extraterritoriality 19, 414, 417–26, 429 fair trial, right to a 232, 519 liberty and security, right to 371–2, 377–9 margin of appreciation 468 territorial administration 545 Ewick, Patricia 178 excessive jurisdiction 6, 356, 360–6, 372–8 exclusive jurisdiction 13, 16–17 exorbitant jurisdiction 344–7 extradition active personality principle 6 aut dedere aut judicare principle 262–3, 279–82, 291–2, 298, 478 extraterritoriality 367–9, 376–7 pluralism 156–7 extraterritoriality 7–8 abduction 366–79 arrest warrants 366–7, 371–2, 376–7 consent of injured states 374–5 extradition 367–9, 376–7 human rights 367–8, 371–2 adjudicative jurisdiction 348–9 Al-Skeini case (ECtHR) 418–20 Banković case (ECtHR) 414, 417–18 cause and effect/functional interpretation 418, 421–5, 429–30 checkpoint test 421, 424–5 cloud computing 381–5, 392–402, 405–6, 409–10 colonialism 69–72, 78–9 concurrent jurisdiction 425–6, 429–30 disputed areas (no man’s land), presumption of jurisdiction applicable to 426 due diligence 425 economic, social and cultural rights 414, 426–30 ECtHR 19, 414, 417–26, 429 effective control over territory 418–19, 425 enforcement 141–2, 366–79 extradition 367–9, 376–7 extraterritorial conduct 414–15

globalization 16, 303, 308–13, 327–8 human rights 367–8, 371–2, 413–30 Kant 86, 88–9, 92, 94 liberty and security, right to 371–2, 377–9 Lotus case (PCIJ) 51 multinational forces 425–6 multiple duty-bearers 425–6 nationality 336 non-state actors 414, 428–9 personal jurisdiction 19, 419–20, 424, 429 physical power of control of persons 418 positive obligations 425–6 presence in territory 398 presumption 402–3 private interests and private law 335–6 production orders 397–401 projection 335 ratione personae jurisdiction 19, 419–20, 429 regulation 335 relational or contextual approach 430 remedies 376–8 sovereign equality of states 51 spatial model of jurisdiction 419–20, 425–6 state practice 376 state responsibility 366–79, 430 substantive law 430 starting point, not exception, as 8 territorial jurisdiction 419, 425 torture 296 treaties 260–1 United States 16, 303, 308–13, 402–3 universal jurisdiction 270, 378–9, 478

F

fair trial, right to a 232, 519 federalism 90, 154, 159–60 Ferdinand II, King of Spain 60 feudalism 44 files and documents 176 Fischer Williams, John 53–4 Ford, Lisa 66 formalism 13, 122 forum non conveniens 313–18, 327, 340 forum shopping 158 Foucault, Michel 162, 169, 180

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562 index France see also Lotus case (PCIJ) Algeria/France conflict 486 Annam 77–8 Cambodia 77 Cochin India 77 colonialism 61–2, 76–8, 80, 486 concessions 70 Conseil d’Etat 175 Egypt 76 extraterritoriality 78 indirect rule 76–7 Indochina 77 Napoleonic code 80 Rwandan genocide 225–6 Security Council (UN) 486 Syria 76 Tunisia 78 Franco, Francisco 225 Frederick I Barbarossa, Holy Roman Emperor 35–7 free riders 213, 215–16 freedom of expression 198 freezing of assets 502 Fuller, Lon 173 functional jurisdiction 41

G

Gaita, Raimond 193–6 Garzón, Baltasar 155–7, 225 General Assembly (UN) 56–7, 474, 491–2, 497, 518–20 general international law 14–17 Geneva Conventions 157, 274–9, 283–6, 298 genocide Armenian genocide 151 aut dedere aut judicare (extradite or prosecute) 262–3 customary international law 15 criminalise, obligation to 264 customary international law 269 domestic tribunals, prosecution in 261 Eichmann trial 15 Genocide Convention 1948 15, 255, 256–70, 280–1, 298, 512 Guatemala, genocide in 225 ICC 261 incitement 223

international tribunals, prosecution in 261 interpretation 265–6 mandatory territoriality 264, 267 minimum obligations 266–7 Nazi regime 267–70 permissive passive personality 269–70 prevent, obligation to 266 prosecutorial obligation 261–4, 267–8 protective jurisdiction 269–70 Rwandan genocide 225–6 Srebrenica genocide 265–6 territorial jurisdiction 280 universal jurisdiction 192–6, 223, 263–70, 280–1 Gentili, Alberico 61 geographical space, social meaning of 130 Germany see also Nuremberg Military Tribunal (NMT) Constitutional Court and CJEU, dispute between 11 idealism and metaphysics 187 piracy 220 positivism 54 Germany v Italy (ICJ) 233–50 Giddens, Anthony 127 Giudice, Michael 138 Global North-South Divide 301, 303, 316–20 global supply chains 127 globalization 94, 300–29 accountability 16, 301 borders 16, 301–27 capital 16, 301, 303, 307–27 communications networks 15–16, 301 corporate activity 16 deterritorialization 127–8 dual nature of territory and borders 303–5 economic integration 15–16, 301 efficiency 301 English corporate cross-border tort litigation 16, 313–29 extraterritoriality 16, 303, 308–13, 327–8 forum non conveniens 313–18, 327 general context 302 global capital 15–16, 301 Global North-South Divide 301, 303, 316–20 leakages of capital 16, 301, 307–27

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index 563 Lotus case (PCIJ) 308–9 non-intervention, principle of 308–9 public-private divide 305–7 scale 168 specific context 302 sponsors, propagators, and beneficiaries of globalization, states as 16, 302 state responsibility 257–8 territorial jurisdiction 16–17, 301–28 victim, state as a 302 WTO 302 glocalization 167–8 Goodrich, Peter 184, 189–91 Grabham, Emily 170 Grotius, Hugo 37–8, 61 Guatemala, genocide in 225 gunboat diplomacy 71

H

Hague Conference on Private International Law 341 Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970 280–3 aut dedere aut judicare principle 280–2, 291–2 establishment of jurisdiction 289 limited bases of jurisdiction 281 multiple grounds, jurisdiction on 287–8 prescriptive jurisdiction 280, 298 territorial jurisdiction 280–1 Tokyo Convention on Offences and Certain Acts Committed on Board Aircraft 1963 287–9 universal jurisdiction 280–3 Hamilton, Charles 65 Hariri, Rafiq 521 Harvard Law School. Draft Convention on Jurisdiction with Respect to Crime 252–3, 297 enforcement jurisdiction 374–5 extraterritorial abduction 374–5 marginalization of private law regulation 339 piracy 272 principles of prescriptive jurisdiction 252–4

Hays, Arthur Garfield 149–50 Hegel, GWF 230 Held, David 143 Henkin, Louis 54 hermeneutical methodology 211 Higgins, Rosalyn 254, 280–1 Hirohito, Emperor of Japan 151 historical background 9–11, 40–58, 341, 385 see also beginnings of state jurisdiction in international law until 1648 Hitler, Adolf 149–50 Hobbes, Thomas 180, 230 Holy Roman Emperor 35–7, 189–91 authority, recognition of papal 36 Byzantine emperors and popes 35–7 choice of law 37 dominus mundi (lord of all the world), emperor as 36–7 executive rule, form of 190–1 Roman emperors, links with 35–6 schism with pope 36 translatio imperii, principle of 35 hospitality, concept of judiciary 94–6 Hovell, Devika 195–6 Huber, Max 42, 52–3 Huber, Ulrik 339 human-centric approach 356, 365–6, 370, 373, 375, 378–80 human dignity 378–9 human rights see also European Convention on Human Rights (ECHR) affect 179 Al-Skeini case (ECtHR) 418–20 anthropocentric legal order 11 Banković case (ECtHR) 414, 417–18 cause and effect/functional interpretation 418, 421–5, 429–30 checkpoint test 421, 424–5 civil and political rights 415–16, 422, 426–7 cloud computing 390, 392, 394 concurrent jurisdiction 425–6, 429–30 context 18 cosmopolitan jurisdiction 226 criminal jurisdiction 521 delegation of powers to international organizations outside ECHR jurisdiction 546–7

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564 index human rights (cont.) diffuse jurisdictions 100, 106, 107–8 Disabilities Convention 2006 416 economic, social and cultural rights 414, 416, 426–30, 452–3 effective control over territory 418–19, 425 enforcement 367–8, 371–3 extraterritoriality 367–8, 376–7, 413–30 fair trial, right to a 232, 519 freedom of expression 108 grave human rights violations 15, 231 Human Rights Act 1998, public functions under 109, 111 IACtHR 417 indigenous people 203 Inter-American Commission on Human Rights (IACrimHR) 19, 414, 422, 429 International Covenant on Civil and Political Rights (ICCPR) 422, 426 International Covenant on Economic, Social and Cultural Rights (ICESCR) 414, 426, 430 investment 444–6, 451–3 Kant 86, 95 Latin American human rights violators 225 liberty and security, right to 371–2, 377–9 Maastricht Principles 426–8 multinational forces 425–6 multiple duty-bearers 425–6 non-state actors 414, 428–9 non-state law and state law, boundaries between 109, 111, 120 non-state norms 151 personal model of jurisdiction 10, 18–19, 195–6, 415–16, 419–20, 424, 429 physical power of control of persons 418 positive obligations 425–6 prescriptive jurisdiction 357 private interests and private law 340 ratione personae jurisdiction 19, 419–20, 429 relational or contextual approach 430 scope 423–5 Security Council (UN) 486, 488–91, 494–5 spatial model of jurisdiction 419–20, 425–6 state immunity 15, 230–2, 235, 241, 243, 246–7 state responsibility 346, 357

substantive law 430 territorial administration 21, 531, 534, 544–51, 552 territorial jurisdiction 379–80, 419, 425 UN Human Rights Committee 19, 414, 422, 429 universal jurisdiction 194, 416 humanitarian intervention 86, 179 Hunter, Ian 184, 186–9

I

identities, production of political and social 122–3 IIL see international investment law (IIL) image of the State 253–4 immunities of territorial administrations and staff absolute immunity 542–3 Charter of UN 542 human rights 21 UN Convention of Privileges and Immunities 1946 542–3 UNMIK 542–3, 552 UNTAET 542, 544, 552 waiver 54 immunity see immunities of territorial administrations and staff; state immunity imperialism 89, 92 imperium, exercise of 11 impunity criminal jurisdiction 513, 527 ICC, Rome Statute of the 250 prescriptive jurisdiction 357 state immunity 250 state responsibility 356–7, 380 universal jurisdiction 343, 359, 361 India Bhopal disaster litigation 316 Cochin India 77 colonialism 65, 75–6, 172, 176 East India Company 75–6 Hindu law 65 Post Office network 176 white lawlessness 75 indigenous people Amerindian nations 165–7 Australia 67, 165, 177–8, 203–4

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index 565 colonialism 60–1, 66–9, 71 diffuse jurisdictions 100, 106 encounters between peoples, nations, and legal regimes 202–3 human rights 203 institutional presence of Indigenous peoples 203 Kombumerri and Munaljarli jurisprudence 202–3 materiality 177–8 Native Americans 60–1, 71 native title litigation 165–6 scale 165–7, 169 spiritual and ecological features of land and water 169 TWAIL scholarship 203–4 UN Permanent Group on Indigenous Issues 203 Wiradjuri scholarship 203–4 Working Group on Indigenous Populations 203 individualism 241–5 Indochina 77 Indonesia East Timor 151, 157 Netherlands, independence from 484–5 inherent jurisdiction 508, 510–11 instantaneity of contracts 173 institutional issues context 17–21 critical approaches 189–90 ethic of responsibility 196 governance structures, building 153–8 indigenous people 203 universal jurisdiction 196 Inter-American Commission on Human Rights (IACrimHR) 19, 414, 422, 429 Inter-American Court of Human Rights (IACtHR) 417 International Commission of the River Oder 460 International Court Justice (ICJ) and Permanent Court of International Justice (PCIJ) 455–80 adjudicative jurisdiction 457–8 admissibility 20 advisory jurisdiction 456, 464–5 challenging jurisdiction 20

classifications 458–9 contentious jurisdiction 456 crimes against humanity 516 declarations 459 dissenting opinions 459 distinctions 458–9 Germany v Italy (ICJ) 233–50 internationalism 479–80 jurisdiction, definition of 459–60 Jurisdictional Immunities case (ICJ) 15, 231–43, 248 Kosovo opinion 56–7 Lotus case (PCIJ) 10, 20, 55–7, 468–76, 478, 480 Nationality Decrees case 468–9 Nicaragua case 55 North Sea Continental Shelf case 55 Nuclear Tests case (ICJ) 510–11 Nuclear Weapons case 55–6 Palestinian Wall, Advisory Opinion on 416 parochialism 479–80 permissive rule, invoking an 20 prescriptive jurisdiction 457–8 presence of defendants 478 Quebec Secession case 56–7 regulation 20, 456–7, 459–60, 477 reserved domain of domestic jurisdiction 20, 458–9, 461–9 restrictions on state’s jurisdictional freedom 477–9 separate opinions 459 state immunity 15, 20, 231–50, 477–80 state responsibility 356 Statute of ICJ 55, 458, 465 Statute of PCIJ 49 territorial jurisdiction 473–5 universal jurisdiction 478 Villa Vigoni case (ICJ) and enforcement of Greek decisions 237 international courts and tribunals see also International Court Justice (ICJ) and Permanent Court of International Justice (PCIJ); International Criminal Court (ICC); Nuremberg Military Tribunal (NMT) compétence de la compétence 513–14 criminal jurisdiction 20, 506–28

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566 index international courts and tribunals (cont.) diffuse jurisdictions 106, 224, 297, 525, 552 International Criminal Tribunal for Rwanda (ICTR) 508, 518–20, 527 International Criminal Tribunal for the former Yugoslavia (ICTY) 379–80, 508, 511–12, 514, 518–20, 527 occupying powers, establishment of 514–18 Security Council, set up by 20 Special Court for Sierra Leone (SCSL) 511, 521–3 Tokyo Military Tribunal (IMTFE) 20, 517 International Covenant on Civil and Political Rights (ICCPR) 415–16, 422, 426 International Covenant on Economic, Social and Cultural Rights (ICESCR) 414, 426, 430, 452 International Criminal Court (ICC) Afghanistan agreement on status of military and civilian personnel with US 525 compétence de la compétence 514 complementarity principle 526 criminal jurisdiction 20–1, 507–8, 511, 523–7 delegated jurisdiction 507, 525, 527 genocide 261 Myanmar case 526 Office of Prosecutor 527 personal jurisdiction 525 pluralism 158 Rome Statute 242, 250, 297, 511, 514, 523–6, 552 serious crimes 524 territorial jurisdiction 525 universal jurisdiction 224, 297, 525, 552 International Criminal Tribunal for Rwanda (ICTR) 508, 518–20, 527 International Criminal Tribunal for the former Yugoslavia (ICTY) 379–80, 508, 511–12, 514, 518–20, 527 international humanitarian law (IHL) 15, 151, 490–2 see also Geneva Conventions Geneva Conventions 157, 274–9, 283–6, 298 international investment law (IIL) 431–54 arbitration 447–51 changing jurisdictional practices 451–3

classic IIL paradigm 440–3 competition state 433, 443, 451 concurrent authority 434 connecting factors 434 context 18 dispute settlement 432–3, 447–51 exercise of state authority 434–8 home state 440 host state 440, 443–52 human rights 444–6, 451–3 hybrid state and non-state authority 19, 432–3, 439–40, 443–54 international investment agreements (IIAs) 440, 448–5 legitimizing sources of power 436–8, 451, 454 neoliberalism 432–3, 441–3, 446–8, 450–2 non-state actors 432, 434–5, 438–40, 444–5, 452 primacy of state authority 433 privatization 452 public functions 452 public/private distinction 445–7 reduction in state authority 446 regulation 442–3 relative authority theory 19 state-centred perspective 433, 438–40, 446–7, 452–4 state intervention 442–3 substantive obligations 450 territorial jurisdiction 443 third parties 439–40 transnational law theory 19, 433–40, 451, 453–4 welfare state 433, 442–7, 451 International Law Commission (ILC) Articles on State Responsibility 361–2, 364, 372–3 crimes against humanity, draft convention on 297 diplomatic protection, draft articles on 6 international relations 8 international right, doctrine of 86 internationalism 479–80 Internet 127, 145, 335 see also cloud computing and enforcement of criminal jurisdiction

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index 567 interrelationship and interdependence between states 230 investment see international investment law (IIL) Iran, protests in 493–4 Islamic jurisdictions 64–5 ‘island’ communities 132 Israel, Nazi and Nazi Collaborators (Punishment) Law 1950 in 267–70 Italy Constitutional Court 15 Germany v Italy (ICJ) 233–50 Permanent People’s Tribunal 151 positivism 54 state immunity 15 ius cogens 231, 234, 235–46 ius gentium (law of all nations) 26–7, 32

J

Jackson, Robert H 515 Japan 62, 71, 150–1 Jellinek, Georg 47–8 Jessup, Philip C 439 Jewish law, enforcement of agreements based on 107 Johns, Fleur 171, 197–9 Joyce, Patrick 176 judiciary activism 72 borders 308 colonies 72 criminal jurisdiction 513–26 hospitality, concept of judicial 94–6 Security Council (UN) 482 territorial administrations 533 jurisconsults 191 jurisdiction, definition of ICJ 459–60 legal power or competence 4 Lotus case (PCIJ) 41 pluralism 122 procedural law 4 regulation 459–60 speaking the law 122 state sovereignty 5 substantive law 4 jurisgenerative approach 154–5 jurispathic approach 154

jurispersuasion 145, 159 jurisprudents 183–4, 199 jurists role 186–91, 203 training 184–5, 188, 191, 204–5 just law 39 Justinian’s Institutes 61

K

Kagame, Paul 225–6 Kant, Immanuel 81–96 accountability 87–8 anthropocentric legal order 11 armed intervention, prohibition of 86 aut dedere aut judicare, concept of 89 categorical imperative 83–6 civil equality 88–9 coercive powers 85, 86–7, 90 coexistence between states 11, 82 comity 93 common interest rationale 92–3 constraints, system of 85–6 contextual interpretation 82 cosmopolitanism 11, 82–3, 89, 91, 93–5 critique of pure reason 85 democratic legitimacy of exercise of jurisdiction 86–9 Doctrine of Right 85 enforcement jurisdiction 85, 92 erga omnes obligations 93 external and rightful freedom 87 extraterritoriality 86, 88–9, 92, 94 federations 90 German idealism and metaphysics 187 global interconnectedness 88 globalization 94 hospitality, concept of judicial 94–6 human rights 86, 95 humanitarian intervention 86 imperialism 89, 92 imperium, exercise of 11 independence 86 international right, doctrine of 86 intertemporal interpretation 82 judiciary 82, 94–6 legitimation, rules and basis of 85–6 Metaphysics of Morals 88 non-intervention, duty of 83–7, 89

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568 index Kant, Immanuel (cont.) permissive jurisdiction 94 Perpetual Peace 11, 82, 85–7, 90–1, 94 personality principle 11 positive principle 96 prescriptive jurisdiction 87 protective principle 93 regulatory state activities 11 republicanism, spirit of 87 separation of powers 83, 85, 87 sovereign equality of states 86–7 State sovereignty 84, 86, 88–93 territorial jurisdiction 11, 86–8, 93 universal jurisdiction 83, 90–6 Westphalian legal order 83 world citizenship 83 Kantorowicz, Ernst 171–2 Kelsen, Hans 84, 101, 103–5, 107, 112, 118 Kennedy, David 186 Kirschner, Nestor 155–6 Kissinger, Henry 151 knowledge practices 197 Koestler, Arthur 149 Kohl, Uta 221 Kolsky, Elizabeth 67, 75 Kontorovich, Eugene 214 Koskenniemi, Martti 184, 186–91 Kosovo see also UNMIK (UN Mission in Kosovo) International Civilian Representative (ICR) 532, 533 Krisch, Nico 138–9 Kuner, Christopher 21

L

Langton, Marcia 203 Latin American human rights violators 225 Latour, Bruno 175–6, 178 law, concept of 102–6 Lawson, Rick 425 League of Nations Codification 339 Covenant 461–4 slavery 255 legal genres 164, 178, 180 legal geography 166–7 legal positivism 509, 511

legal privilege 26 legal space, construction of 130 legality, principle of 357, 361, 362–5, 396 legitimacy 85–9, 436–8, 451, 454 Leiboff, Marett 195 lex mercatoria 198 lex superior rule 244 Li Peng 489 liberal democratic states 172, 218 liberty and security, right to 371–2, 377–9 liminal spaces 146 limits of jurisdiction 6–7 lis pendens 353–4 literary genres 164, 179–80 localism 137 Locke, John 39, 171 loss of location principle 385–6, 389–96, 401 Lotus case (PCIJ) 6–7, 20, 40–58, 468–76, 480 adjudicative jurisdiction 41, 51 affect 178 Capitulations, abolition of 469–70 consent to jurisdiction 49–50 criminal jurisdiction 49–53, 470–1, 475 enforcement 41, 51 epistemology of international law 42 extraterritoriality 51, 478 functional jurisdiction 41 globalization 308–9 historical context 10, 40–58 ICJ, jurisprudence of 10, 55–7 Kosovo opinion 56–7 Nicaragua case 55 North Sea Continental Shelf case 55 Nuclear Weapons case 55–6 Quebec Secession case 56–7 Statute 55 independence 51, 54 jurisdiction, definition of 41 Law of Nations 48 legislation 42 not prohibited, state’s ability to do what is 10, 53 Nuclear Weapons case 55–6, 474–6 objective territorial jurisdiction 473–4 positivism 10, 47–54, 56–7 prescriptive jurisdiction 41–2, 50, 52–5, 357

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index 569 prohibitive rules on jurisdiction 47–54, 58 publicists, writings of 53–4 sources of international law 49 sovereign equality of states 51 state sovereignty 10, 42–7, 51, 56–8 Statute of PCIJ 49 subjective territorial jurisdiction 473 temporal scales 174 territorial jurisdiction 43, 50–2, 257–9 theoretical assumptions 10 treaties 299 universal jurisdiction 359, 478 voluntary thesis 51, 53, 56–7 Westphalian legal order 10, 42–7 Lowe, Vaughan 21 Luban, David 195–6, 223 Luhmann, Niklas 179

M

McArthur, Douglas 517 McKinley, Michelle 67 McMillan, Mark 203–4 Maitland, Frederick 171 Major, John 488 managerialism 187–8 Mann, Francis 460 Mann, Frederick 42 Mann, Itamar 223 Maori customs and practices 67 maps 123–5, 127, 166–9 Marghinani, Burhan Al-Din 65 Martinus 36–7 materiality 13, 164, 174–5 anthropology 176 colonial state 176 criminal case files 178 epistemology 178 files and documents 176 indigenous legal claims 177–8 knowledge relations 174 land-based prejudices of state and state-centric law 177–8 legal actors and processes 175–8 legal visualizations 176 legal work 176 migration law and materiality of means of transport 175

power relations 175 pre-printed forms with blanks to fill in 177 spacetime, legal construction of 174–5 university mission statements, format of 177 Mawani, Renisa 177 medieval state 10, 26, 35–7, 44 Mégret, Frédéric 95, 196, 222–3 Mexico 73 Meyrowitz, Joshua 136 migration law and materiality of means of transport 175 Milanovic, Marko 21 military conquest 60–1, 63 Miller, Anthony J 534 Mills, Alex 7 Milošević, Slobodan 538 Mitterand, François 488 Miyazawa, Kiichi 489 monism 103, 107, 248–9 monopolies on commerce 61, 63 moods 164, 179 Morris, Madeline 507, 510 Müller, Andreas Th 185 multinational forces 425–6 multiple grounds, jurisdiction on 286–96, 297 Mutual Legal Assistance Treaties (MLATs) 385–6, 389–93, 400, 403–4, 408–9

N

narrative effect 13 national identity 125 national interest see cosmopolitan jurisdiction and the national interest national law see domestic law nationality 5–7, 252–3 active personality principle 6, 334 countermeasures 364–5 domestic law 6 extraterritoriality 335 genuine link test 6 mandatory nationality 287, 291 passive personality principle 334 prescriptive jurisdiction 357 private interests and private law 16, 332–6 territorial jurisdiction 260

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570 index nationality (cont.) treaties 15, 25, 203, 271 universal jurisdiction 271, 358, 362–3 natural law 38–9, 144–5, 192, 195 Nazi regime 233–40, 267–70 see also Nuremberg Military Tribunal (NMT) necessity, forum of 342 neo-formalism 162–3 neoliberalism 432–3, 441–3, 446–8, 450–2 Netherlands Civil Code 78 colonialism 61, 78–9 courts 78–9 Dutch East India Company (VOC) 78–9, 171 extraterritoriality 79 New Zealand 67 Nietzsche, Friedrich 162, 174 NMT see Nuremberg Military Tribunal (NMT) Non-Aligned Movement (NAM) 201 non-essentialism 103 non-intervention, principle of 83–7, 89, 308–9 non-state actors domestic sphere, as operating in 432 extraterritoriality 414, 428–9 investment 432, 434–5, 438–40, 444–5, 452 non-state law, boundaries between state and 13, 100, 103–20 classification of non-state norms as law 103, 107–11 customary international law 107, 110, 111, 119–20 definitional stop 104 enforcement of norms 117–19 formation of norms 111 human rights 109, 111, 120 Human Rights Act 1998, public functions under 109, 111 interpretation of norms 115–17 mapping the boundaries 110–19 non-state law, definition of 101 pluralism 105–6, 119–20 positive law 105 recognition of norms 111–15

religious law 106, 107–8, 110–11, 117–20 stability 13 state-centred legal order 120 transformation to state law, timing of 101 non-state norms 147–53 Norodom, King of Cambodia 77 Notker 35 Novak, William 172 Nuclear Tests case (ICJ) 510–11 Nuremberg Military Tribunal (NMT) 20, 509, 514–18, 524, 527 adjudicative jurisdiction 516 Charter 515–16, 518 crimes against humanity 516 crimes against peace 516 customary international law 518 domestic jurisdiction 515–16 London Agreement 515–16 Nuremberg Principles 518 peace, crimes against 516 prescriptive jurisdiction 516 sources of law 515–16 war crimes 516

O

occupation 62, 514–18 Office of the High Representative of Bosnia-Herzegovina (OHR) 531, 533, 551 Office of the Ombudsperson 502 Oorschot, Irene 178 opinio juris 239 Oppenheim, Lassa 48–9 Orakhelashvili, Alexander 21, 249 Orford, Anne 183–4, 189–91 Otto of Freising 36 Ottoman Empire 70, 80 overlapping jurisdictions 13, 139, 153–4, 159–60, 343, 531 Özsu, Umut 178

P

pacta tertiis principle 509 Pahuja, Sundhya 201 Paine, Thomas 140–1 papal donation 61 parochialism 479–80

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index 571 passion 178, 195 passive personality principle 6, 15, 252–5, 260, 271, 291, 358 PCIJ see International Court of Justice (ICJ) and Permanent Court of International Justice (PCIJ) peace, crimes against 516 peace processes 496 Pellet, Alain 48 Permanent Court of International Justice (PCIJ) see International Court of Justice (ICJ) and Permanent Court of International Justice (PCIJ) permissive jurisdiction 7, 94 perpetual succession in incorporation statutes 170–3 personal jurisdiction criminal jurisdiction 506, 512, 522 human rights 10, 18–19, 195–6, 415–16, 419–20, 424, 429 ICC 525 Security Council (UN) 482 state sovereignty 506 personality principle 10, 11, 15, 26–8, 32, 37 active personality principle 6 passive personality principle 6, 15, 252–5, 260, 271, 291, 358 Pinochet, Augusto 156–7, 179–80, 217, 225, 293, 295 piracy bystanders states 214 cooperation, principle of 272 enforcement jurisdiction 273–4 Harvard Research in International Law, Draft Convention of the 272 high seas 273 Law of the Sea Convention 1982 (UNCLOS) 272–4 non-prosecution 69–70, 213–14, 220, 223 permissive universality 272–4 prescriptive jurisdiction 273 Roman law 30–1 universal jurisdiction 69, 272–4, 279 pluralism 121–60 alternative norms 140–2, 159 assertions of jurisdiction 155–7 classification 13

colonialism 75 communications technology 159 contemporary social conditions 13 contestation 145–53, 155, 159–60 cosmopolitanism 122, 142–5, 153, 159 critical approaches 200, 202–4, 205 cultural change 128–37 deterritorialization 126, 127–8, 129, 137, 145–6, 160 diffuse jurisdiction 101 encounters between peoples, nations, and legal regimes 200, 202–3 exclusive jurisdiction 13 formalism 13, 122 forum shopping 158 globalization 153 governance structures, building 153–8 jurisdiction, definition of 122 overlapping jurisdictions 13, 153–4, 159–60 political realities 13 reconceptualization of jurisdiction 13 regulatory authority, changes in 13 relative authority 137–40, 159 Roman law 32 sociological realities 13 state responsibility 16, 356 territorial jurisdiction 32, 122–6, 158, 159 transnational legal pluralism 8 universal jurisdiction 159 politics 13, 20, 71–2, 187, 230–1, 235–7, 482, 492 Pompey 31 populism 127–8 Portugal 38 positive obligations 17, 381, 386 positivism 47, 103–5, 214–15, 229, 238, 245, 356, 357 precedent 116 premodern legal doctrine in the formation of state jurisdiction 37–9 prerogative jurisdiction 257, 288–9, 294–5 prescriptive jurisdiction adjudicative jurisdiction, separation of 332, 343, 344–9, 354 Cloud computing 384–5, 397–8 comity 334

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572 index prescriptive jurisdiction (cont.) connecting factors 332 countermeasures 363–5 criminal jurisdiction 16, 357–65 customary international law 357 enforcement 332–3, 379, 457–8 excessive prescriptive jurisdiction 360–6 globalization 357–8 Harvard Law School. Draft Convention on Jurisdiction with Respect to Crime 252–4 human rights 357 ICJ 457–8 image of the State 253–4 impunity 357 Kant 87 legality, principle of 357 Lotus case (PCIJ) 10, 47–54, 56–7, 357 multiple grounds, jurisdiction on 286–9 nationality 252–3, 357 passive personality 252–3 positivism 357 principles 252–4 private interests and private law 332–4, 344–9, 354 protective principle 252–3 regulation 13, 357–8 state responsibility 16, 357–65 state’s interests, protection of 357–8 state sovereignty 357 substantive law 357–8 territorial jurisdiction 252–3, 257, 260, 357 terrorism 358–65 Torture Convention 294–5 treaties 255, 273, 280, 298 universal jurisdiction 252–3, 273, 280, 358–65 presence in the jurisdiction adjudicative jurisdiction 344–6 crimes against humanity 478 customary international law 478 extraterritoriality 366–72, 398 ICJ 478 state responsibility 366–79 territorial jurisdiction 365–72 universal jurisdiction 478 war crimes 478

primacy of the state 8, 117, 433 privacy 386, 403, 405 private interests and private law 330–54 access to justice 340–2 adjudicative jurisdiction 332, 336, 340, 343–9, 353 conflicting regulation, techniques to manage potentially 351–4 connecting factors 349–51 criminal law 16, 339 due process 336, 340 enforcement jurisdiction 332 exhaustion of local remedies 342 extraterritoriality 335–6 forum non conveniens 340 Hague Conference on Private International Law 341 historical development of international law of jurisdiction 338–9 human rights 340 Internet 335 marginalization of private law 16, 337–9 nationality 16, 332–6 necessity, forum of 342 prescriptive jurisdiction (application of law) 332–4, 344–9, 354 public function of private law 16 public law regulation, private interests in 336–7 regulation 16, 331–2, 335–54 Roman law 26, 31–2, 39 state-centric focus of jurisdiction 331–2 subjects of international law, private parties as 331 territorial jurisdiction 16, 332–6 Torture Convention 342–3 traditional grounds of jurisdiction 332–6 universality jurisdiction 332–6, 342–3 privatization 452 Privy Council, Judicial Committee of the (JCPC) 80 procedural law 4, 15, 241–2, 244–5 production orders 408 prohibited, state’s ability to do what is not 10, 53 prohibitive jurisdiction 7, 47–54, 58 protective principle 15, 93, 252–5, 260

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index 573 public/private distinction 65, 305–7, 432, 452 public spaces, restrictions on use of 130 Pure Theory of Law 103, 104–5

R

Raible, Lea 420, 422 Rainaldo de Dassel 36 rational choice theory 212–13 ratione loci jurisdiction 512 ratione materiae jurisdiction 512 ratione personae jurisdiction see personal jurisdiction ratione temporis jurisdiction 512 Rawls, John 143 Raz, Joseph 138–9 realism 211–12, 218, 221 reason, emotion and theatre 196 reciprocity 232 regulation adjudicative function 13, 353 authority, changes in 13 borders 308–13 choice of law 352 cloud computing 384, 388 connecting factors 351, 457 cosmopolitan jurisdiction 211–12 diffuse jurisdiction 13 enforcement 13, 457 EU law 351–2 extraterritoriality 351 formal equality of states 457 ICJ 20, 456–7, 477 investment 442–3 jurisdiction, definition of 459–60 Kant 11 lis pendens rule 353–4 prescriptive jurisdiction 13, 357–8 private law regulation 16, 331–2, 335–54 public law regulation, private interests in 336–7 res judicata 353 self-regulation 147 state interventions in important cases 338 state practice 338 territorial jurisdiction 351 Reichstag fire 149–50 Reisman, Michael 147–8, 449

relative authority theory 19, 137–40, 159 relative immunity 231–2 religion 13, 60, 64–5, 103–5, 111–16, 189–91 republicanism, spirit of 87 reputation of states 6 res judicata 353 residence 16, 94, 287, 347, 349, 351, 471, 486 Resnik, Judith 154 Rhodian law 28–9 Riles, Annelise 162, 176, 197–9 Roberts, Anthea 450 Roman law 10, 26–32 colonialism 61 Constitutio Antoniniana 33–4 customary law of the sea 28–31 elites 32–3 Holy Roman Emperor, links with 35–6 imperium populi Romani 28 ius civile (civil law) 26–7, 31–2 ius gentium (law of all nations) 26–7, 32 land, power over 28 limited sovereignty of emperor 28–32 local law as subservient to imperial law 29 names, spread of local 34 natural law 38 ownership of land 31 personality principle 26–8, 32, 37 piracy 30–1 pluralism 32 private law 26, 31–2, 39 Romanization 33 Severan period (193–235 CE) 32 slaves 33 Social War 32 terra nullius, doctrine of 31 territorial jurisdiction 26–8, 31–5 universal jurisdiction 28–30 Ross, Amy 225 Roughan, Nicole 138–9, 453–4 rule of law 74, 224, 378–9 rural areas to urban mega-centres, migration from 129 Russell, Bertrand 151 Ryngaert, Cedric 4, 21, 51, 88, 425

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574 index

S

Salomon, Margot E 416 sanctions (UN Security Council) 20, 495–502 arms embargoes 499–501 asset freezing 502 assistance to member states 496 Chapter VII 501 committees 496–8, 501–2 comprehensive sanctions 495–6 criminalization of non-compliance 496 customary international law 498–9 delisting 502 enforcement activities 498–501 EU law 501–2 exceptions and exemptions 497 expansion of sanctions 498–502 implementation 496–8 individuals and entities, expansion vis-à-vis 501–2 INTERPOL 502 Law of the Sea Convention (UNCLOS) 498–9 lists, dissemination of 502 member states, expansion vis-à-vis 498–502 monitoring 496 non-proliferation measures 500–1 Office of the Ombudsperson 502 operationalization 496–8 peace processes 496 resolutions 496 secondary sanctions 496 sectoral bans 498–501 Southern Rhodesia 495–6 special economic problems 497 targeted sanctions 495–6, 501 universal jurisdiction 499–500 Santos, Boaventura de Sousa 166–7 Sarooshi, Danesh 509 Sartre, Jean-Paul 151 Sassen, Saskia 306 Saunders, Anna 201 scale 13, 163–75 boundaries 170 disjunctions 163 distributions of power and governance 166

globalization 168 glocalization 167–8 indigenous legal claims 165–7, 169 legal geography 166–7 maps 166–9 multi-scalar governance 163, 164 political effects 169–70 qualitative dimension 168–70 quantity 167–8 re-scaling 167–8 scalar effects 167 shifting 163, 165–70 temporal scales 170–5 three-level model 167 urban studies scholars 167 Scheppele, Kim Lane 158 scholarship see socio-legal scholarship and legal scholarship Scott, James 68, 169 sea, the customary law of the sea 28–31 functional jurisdiction 41 Law of the Sea Convention (UNCLOS) 272–4, 498–9 rights over the sea 61 Security Council (UN) 481–503 agenda 483–95, 503 Chapter VI 484, 486–7 Chapter VII 484–6, 501 Charter of UN 20, 482–9, 492–7 children and armed conflict 491 civilians in armed conflict, protection of 489–92 Cold War 20, 482–90, 503 competence 20, 484–6, 494 countermeasures 364 courts and tribunals, establishment of 518–21, 527 cross-cutting items on SC’s agenda 483–95, 503 early days 484–7 executive 482 expansion of jurisdiction 483–503 high-level meetings 483 human rights 486, 488–91, 494–5 interactions with member states and civil society 20

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index 575 international courts and tribunals, establishment of 20 international humanitarian law (IHL) 490–2 judiciary 482 legislative initiatives 482, 493 maintenance of international peace and security 482, 487–90, 503 periodic meetings 482, 487–8, 503 personal jurisdiction 482 political jurisdiction 20, 482, 492 provisional rules of procedure 20, 482, 486–7 resurgence of the Council 488–90 sanctions 20, 495–502 subject matter jurisdiction 482 subsidiary organs 482, 491, 493 territorial administrations 530, 532 thematic items on SC agenda 483–95, 503 threats to international peace and security 493–5 women and peace and security 492–3 working methods and practices 491, 493 seizure of property and land 60, 66 self-incrimination 391 separation of powers 83, 85, 87 September 11, 2001, terrorist attacks on United States 157 Seuffert, Nan 62–3 Shanghai International Settlement 70 Sharia Guarantee Clause 115–16 Siam 62 Silbey, Susan 178 Simma, Bruno 185 slavery 33, 73, 146, 152, 255, 272–3 social contract 181 social theory and law, relationship between 13, 162–4 socio-legal scholarship and legal scholarship 161–81 affect 164, 178–80 boundaries between different fields 165–6 interdisciplinarity 13 materiality 13, 164, 174–8 narrative effect 13 neo-formalism 162–3 non-legal disciplines, borrowing from 13

non-legal phenomena 162 scale 13, 163–75 social theory and law, relationship between 13, 162–4 sociology of law 162 spatio-temporality 164 state sovereignty 165–6 temporal scales 170–5 temporalities 13, 164 technicalities 164 sociology of law 8, 162 sources of international law 49 South Africa Constitutional Court 221 sovereign equality of states 5, 7, 51, 86–7, 409–10, 456–7 sovereign immunity see state immunity sovereignty see state sovereignty space, cultural construction of 129–31 spacetime, legal construction of 174–5 Spain Argentine military, assertion of jurisdiction over 155–7 cabildos 73–4 Chile 73, 156–7 colonialism 60–1, 72–4 corregidores 74 Guatemala, genocide in 225 Historical Memory Law in 2007 225 Latin American human rights violators 225 Mexico 73 pluralism 155–7 premodern legal doctrine in the formation of state jurisdiction 38 Rio de la Plata 72–3 slaves 73 universal jurisdiction 225 ‘speak the law’, power or authority to 13, 122, 183, 229 Special Court for Sierra Leone (SCSL) 511, 521–3 spiritual and temporal jurisdiction 190–1 Spoenle, Jan 395–6 Staker, Christopher 21 state-centric perspective authority, exercises of 432 investment 433, 438–40, 446–7, 452–4

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576 index state-centric perspective (cont.) law, concept of 103, 105 private interests and private law 331–2 state immunity 241–2 state responsibility 365–7, 370, 372–3, 377, 379–80 state immunity 228–50 absolute immunity 15, 230–2 acta iure gestionis (commercial activities) 230–1 acta iure imperii (political activities) 230–1, 235–7 adjudication, immunity from 231, 478–9 Arrest Warrant case 477–8 codification projects 230 comity 232 concept 229–31 crimes against humanity 179–80, 478–9 customary international law 15, 230, 235–6, 238–9, 242–3, 247, 249 derived immunity 233 enforcement 229, 246 European Convention on State Immunity 1972 204, 235 fair trial, right to a 232 formation of international law 242–3 functions 229–31 Germany v Italy (ICJ) 233–50 grave human rights violations 15, 231 hierarchy of norms 242, 244–5 human rights 15, 230–2, 235, 241, 243, 246–7 ICJ 15, 20, 231–50, 477–80 impunity 250 individualism 241–5 international humanitarian law 15 interrelationship and interdependence between states 230 Italian Constitutional Court 15 ius cogens 231, 234, 235–46 Jurisdictional Immunities case (ICJ) 15, 231–43, 248 lex superior rule 244 national laws and international law, interaction between 15, 247–9 ne ultra petita principle 478 philosophy 229–31 positivism 229

procedural law 15, 241–2, 244–5 prosecute or extradite principle 478 recent developments in international jurisprudence 231–3 reciprocity 232 relative immunity 231–2 state centrism 241–5 state practice 242 state sovereignty 229, 248 substantive law 15, 244 torture 233, 236 UN Convention on Jurisdictional Immunities 2004 230, 250 United States 246 universal jurisdiction 230, 477–8 values, international law as a system of 242–3 Villa Vigoni case (ICJ) and enforcement of Greek decisions 237 voluntarist approach 242 war crimes 478–9 state responsibility see state responsibility and prescriptive jurisdiction state responsibility adjudicative jurisdiction 16 case study 366–72 competing paradigms 356 continuing wrongful acts 367, 372–3 countermeasures 363–5, 375–8 criminal jurisdiction 16, 355–80 enforcement jurisdiction 16, 365–80 excessive jurisdiction 356, 372–8 exclusivity, principle of 16–17 extraterritorial abduction 366–79 globalization 357–8 holistic perspective 373 human-centric perspective 356, 365–6, 370, 373, 375, 378–80 human dignity 378–9 human rights 356–7, 367–8, 371–3 ILC Articles on State Responsibility 361–2, 364, 372–3 impunity 356–7, 380 internationally wrongful acts 356 limits on jurisdiction 16–17 Lotus case (PCIJ) 16, 357 nationality 357

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index 577 PCIJ 356 pluralism 16, 356 positivism 356, 357 prescriptive jurisdiction 16, 357–66, 379 excessive prescriptive jurisdiction 360–6 presence of accused 366–79 regulation 357–8 remedies 376–8 rule of law 378–9 state-centric perspective 365–7, 370, 372–3, 377, 379–80 state sovereignty 16–17, 357 state’s interests, protection of 357–8 substantive jurisdiction 356–7, 365–6 territorial jurisdiction 357, 365–80 transnational crime 356 universal jurisdiction in the terrorism context 358–65 state sovereignty 10, 26–7, 39 absolute authority 46 blackboxing 166 civitas Christiana 46 cloud computing 403, 406, 409 colonialism 67, 165 context 42–7 Eastern Greenland case 42 external sovereignty 46–7 independence 42, 46–8 indigenous/native title litigation 165–6 Kant 84, 86, 88–93 Lotus case (PCIJ) 10, 42–7, 51, 56–8 normativity, voluntary acceptance of 47 passive personality principle 6 personal jurisdiction 506 positivism 47 sovereign equality of states 5, 42 sovereignty, definition of 456 state immunity 229, 248 state responsibility 16–17, 357 supra-state treaties or bodies 165 territorial administrations 530, 532 territorial jurisdiction 5–6, 44–7, 256 Westphalian sovereignty 10, 42–7, 61–4 stateless persons 126 Stern, Philip 76 Story, Joseph 339

Strathern, Marilyn 177 subsidiary jurisdiction 217, 218 Svantesson, Dan 406–7, 409 Syngedouw, Erik 167–8 Syria 76, 495

T

Talmon, Stefan 240 Tamanaha, Brian 101, 106–7, 109 Taylor, Charles 523 technical forms and means of jurisdictional conduct 197–9 technology see cloud computing and enforcement of criminal jurisdiction boundaries of states 131–2 communications technology 15–16, 127, 159, 301 Internet 127, 145, 335 temporal scales 170–5 arbitrariness 170 Christian theology 171–2 corporations, temporalization of 171–2 crime to a singular spacetime, affixation of 174 foetus become a person, when a 173 instantaneity of contracts 173 legal fictions 173–4 perpetual succession in incorporation statutes 170–3 spacetime, legal construction of 174–5 state and corporation, separation of 171 terra nullius 31, 61, 66 territorial administration 529–52 see also UNMIK (UN Mission in Kosovo); UNTAET (UN Transitional Administration in East Timor) ad hoc establishment 531 basis for jurisdiction 531, 532–3 Bosnia-Herzegovina, Office of the High Representative of (OHR) 531, 533, 551 Brahimi Report 552 code, proposal for an interim 552 consent to jurisdiction 532 culture 552 disputed regions 531 domestic law, impact on 532–3

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578 index territorial administration (cont.) domestic legal systems, exercise within 11, 531, 533–7, 552 EULEX 531–2 executive functions 533–4 human rights 21, 531, 534, 544–51, 552 immunities of administrations and staff 21, 530, 542–4, 552 International Civilian Representative (ICR) (Kosovo) 532, 533 international crimes 21, 537–42 international organizations 21, 530–2 investigations 531 judicial functions 533 Kant 11, 86–8, 93 language 552 legislative functions 533–4 local self-governing institutions 533–4 mandates 531–4, 552 non-self-governing territories 531 overlapping jurisdictions 531 private interests and private law 16, 332–6 Security Council 530, 532 stabilization of countries or regions 21 state sovereignty 530–1 time limits 531 Torture Convention 294 treaties 15, 255, 256–70, 298–9, 530 universal jurisdiction 271, 280, 552 UNTAC 531, 532 UNTEA 531 territorial jurisdiction 7–8 see also treaties and territorial principle boundaries 16, 79–80, 159, 301, 303–27 citizenship 32–4, 39 cloud computing 17, 381–94, 398, 404 colonies 10, 60–3, 66, 79–80 constitutive element of statehood, as 304–5 contingent nature 43 criminal jurisdiction 526 critical geography 123–4 culture 123, 125–6 de jure versus de facto control 305 deterritorialization 126, 127–8, 129, 137, 145–6, 160 divisibility 304–5 dual nature of territory and borders 303–5

extraterritoriality 8 formal equality 456 genocide 280 geographical borders 5 globalization 16, 301–28 historical background 9–10 ICJ 473–5 investment 443 lex domicilii 66 lex situs 66 maps 123–5 nation states, ascendency of 10 nationality 5 novel basis for jurisdiction, as 10 obsolescence 9 open borders 17, 302–3 personality principle 14, 32, 37 pluralism 32, 122–6, 158, 159 premodern legal doctrine in the formation of state jurisdiction 38 prescriptive jurisdiction 252–3 production of political and social identities 122–3 public-private divide 305–7 Roman law 26–8, 31–5, 39 slaves 33 sovereignty, definition of 456 state responsibility 357, 378–9 state sovereignty 5–6, 44–7 statehood 456 stateless persons 126 war crimes 285–6 Westphalian sovereignty, export of 61–2 terrorism 246, 361, 521 textbooks 457–8 theory of jurisdiction 11–14 Tokyo Convention on Offences and Certain Acts Committed on Board Aircraft 1963 287–9 Tokyo Military Tribunal (IMTFE) 20, 517 Tomlinson, John 127–8 Tomuschat, Christian 238 topological space 129 torture actus reus 293 aut dedere aut judicare principle 291–2 civil remedies, obligation to provide 342–3

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index 579 Committee against Torture 342–3 compensation 343 customary international law 293, 295–6, 298 discrimination 293 extraterritoriality 296 permissive universality 296 prerogative jurisdiction 294–5 prescriptive jurisdiction 294–5 private interests and private law 342–3 safe harbour for torturers or common enemies of mankind 221 territorial jurisdiction 294 Torture Convention 15, 236, 289–96, 298, 342–3 United Kingdom 293 universal jurisdiction 295–6, 343 training in conduct of office of jurists 184–5, 188, 191, 204–5 transnational law theory 19, 433–40, 451, 453–4 transnational legal pluralism 8 Transnistria 417–18, 420, 425–6 treaties 251–99 see also treaties and territorial principle; treaties and universal jurisdiction aut dedere aut judicare principle 298 competences 254 criminal tribunals, establishment of 521–3 customary international law 15, 254, 298 Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970 298 international courts and tribunals established by treaties 523–5 interpretation 464–5 Lotus case (PCIJ) 299 multiple grounds, jurisdiction on 286–96, 297 Mutual Legal Assistance Treaties (MLATs) 385–6, 389–93, 400, 403–4, 408–9 nationality principle 15, 25, 203 passive personality principle 15, 255 pluralism 202 prescriptive jurisdiction, principles of 255, 298 protective principle 15, 255 slavery 255

supra-state treaties or bodies 165 traditional principles 15 universality jurisdiction 15, 255, 270–86 Vienna Convention on the Law of Treaties 235 treaties and territorial principle 15, 255, 256–70 discretion, notion of sovereign 260 extraterritoriality 260–1 Genocide Convention 261–70 International Penal law Treaty 1889 257 Lotus case (PCIJ) 257–9 nationality 260 objective territoriality 259 passive personality principle 260 prerogative jurisdiction (enforcement) 257 prescriptive jurisdiction 257, 260 protective principle 260 scope of territoriality 260, 267 sovereign discretion 260 state sovereignty 256 subjective territoriality 259 universal jurisdiction 260 treaties and universal jurisdiction 15, 255, 270–86 aut dedere aut judicare 279–81 discretion 271 extraterritoriality 270 Genocide Convention 280–1 Geneva Conventions 274–9 Hague Convention for the Suppression of Unlawful Seizure of Aircraft 1970 280–3, 287–91 mandatory universality 277 multiple grounds, jurisdiction on 286–96 nationality 271 passive personality principle 271 piracy 272–4, 279 prescriptive jurisdiction 273, 280 territorial jurisdiction 271, 280 Torture Convention 289–96 war crimes 283–6 Triepel, Heinrich 48, 54 truth commissions 152 Tunisia 78 Turkey 62 see also Lotus case (PCIJ)

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580 index

U

Ulpian 33 United Kingdom see also British Empire corporate cross-border tort litigation 16, 313–28 accountability 313–14, 316, 328 Alien Tort Statute (ATS) litigation 313 Benkharbouche litigation 340–1 borders, leaking of 313 Brexit 137 colonialism 318 corporate veil, piercing the 313–18 extraterritoriality 71 forum non conveniens 313–18 human rights 109, 111, 341 Nigerian oil case (Okpabi case) 313, 322–9 private law sphere 16, 313–27, 340–1 protective shields, removal of 313–18 religious law 101, 105 self-regulation 147 State immunity 340–1 TNCs 313–18 torture 293, 343 universal jurisdiction 343 Zambian Copper case (Vedanta Resources plc) case 313, 318–322 United Nations 189–90 see also Charter of the UN; Security Council (UN); UNMIK (UN Mission in Kosovo); UNTAET (UN Transitional Administration in East Timor) United States Afghanistan agreement on status of military and civilian personnel with US 525 Alien Tort Statute (ATS) 215, 220, 312–13, 338 boundaries of states 131–2 CLOUD Act 2018 (United States) 335, 383, 406–9 cloud computing 383, 386, 388–9, 406–9 concessions 70 conflict of laws 165 consent to jurisdiction 133–4 Constitution 134–5 corporate charter, as founded through a 171 corporate presence, creation of 134

cosmopolitan jurisdiction 215–17, 220–1 due process 340 electronic communications 136–7 extraterritoriality, presumption against 16, 303, 308–13 Indian Bhopal disaster litigation 316 ‘island’ communities 132 localism 137 localization of causes of action 131–2 nuclear families in North America, myth of 180 out-of-state litigation 133–4 Pennoyer case 132–4 presidential election 2016 137 psychic significance of defending oneself in another state 132–3 Restatement (Fourth) of Foreign Relations Law 334 safe harbour for torturers or common enemies of mankind 221 Securities Exchange Act 1934 310–11 slavery 152 social contract, as founded through a 171 social space 132, 136 state and corporation, separation of 171 state immunity 246 Supreme Court, intervention of 338 territorial jurisdiction 131–7 terrorism 246 torture 343 Uniform Commercial Code (UCC) 149 vitamins cartel 215–16 universal jurisdiction 10, 26–8, 35–7 see also treaties and universal jurisdiction accountability 224 anthropocentric legal order 11 bystander cases 222, 225 case study 358–9 clean hands doctrine 224 cloud computing 395 colonialism 223–5 conduct of jurisdiction 192–6 connecting factors 14, 343 consent to jurisdiction 362–3 cosmopolitan jurisdiction 196, 210–14, 217, 219–20, 222–7

OUP CORRECTED PROOF – FINAL, 07/31/2019, SPi

index 581 countermeasures 363–5 crimes against humanity 192–5 crime, victims of 95–6 criminal jurisdiction 14, 332–3, 342–3 critical approaches 192–6, 199 customary international law 358–9 diaspora communities 224 domestic courts 192–3 effects principle 14 excessive prescriptive jurisdiction 360–2 extraterritoriality 378–9, 478 genocide 192–6, 223, 263–70, 280–1 historical background 10, 26–8, 35–7 Holy Roman Emperor 35–7 human rights 416 ICC 224, 525 ICJ 478 immigrants 222–3 impunity 343, 359, 361 institutions, authority and ethic of responsibility of public 196 Kant 83, 90–6 Kiobel case 342 legality, principle of 361, 362–5 Lotus case (PCIJ) 359 nationality 358, 362–3 natural law 192, 195 non-exercise of jurisdiction 212 overlapping jurisdiction 343 passion of law 195 personal jurisdiction based on human rights 196 piracy 69, 272–4, 279 pluralism 159 prescriptive jurisdiction 252–3 presence of defendants 478 private interests and private law 332–6, 342–3 prosecute or extradite principle 478 reason, emotion and theatre 196 remorse and wrongdoing 195 Roman law 28–30 rule of law 224 Rwandan genocide 225–6 sanctions 499–0500 solidarity 222 state immunity 230, 239, 477–8

state responsibility 358–65 technical forms and means 197–9 territorial administration 552 territorial jurisdiction 260, 358 terrorism 358–65 Torture Convention 295–6, 342–3 treaties 15, 255, 270–86, 358–9, 362 triggering jurisdiction 223 vigilante jurisdiction 195 university mission statements, format of 177 UNMIK (UN Mission in Kosovo) 21, 531–5 Criminal Code, recognition of Kosovo’s 534–5, 552 crimes against humanity 539 degree of control over troops 547–8 domestic law, reliance on 534–5, 539 duration 535 equivalent protection 546–7 EULEX mission 550–1 executive functions 533–4 extraterritorial jurisdiction 535, 545–7 genocide 539 human rights 534, 545–51 Human Rights Advisory Panel (HRAP) 549–51 ICTY, relationship with 537–40 immunities 542–3, 548, 552 impartiality 538, 549–50 international criminal law 537–9 international humanitarian law 534 judges 533, 538 KFOR 543, 545–6 Kosovo court system 537–8 legislative functions 533–4 life, right to 550 local self-governing institutions 533–4 nationality principle 535 number of people tried 538, 552 Ombudsperson Institution of Kosovo (OIK) reports 548–9 Provisional Criminal Code 535, 539 rape and murder, waiver of immunity for 544 reconstruction of the Kosovo justice system 538–9 resources 552 territorial jurisdiction 535

OUP CORRECTED PROOF – FINAL, 07/31/2019, SPi

582 index UNMIK (UN Mission (cont.) UN Third Party Claims Commission 550 war crimes 535, 538–9 Yugoslav Criminal Code 539 UNTAC (UN Transitional Authority in Cambodia) 531, 532 UNTAET (UN Transitional Administration in East Timor) 21, 531–67 Armando dos Santos decisions 536–7 domestic laws of Indonesia, maintenance of 535–7 Dutch colonial period 535 East Timor Police Service 551 executive functions 533–4 extraterritoriality 535 human rights 535 ICC as not a party to 540 immunities 542, 544, 552 international crimes 540 judicial functions 533 legislative functions 533–4 local self-governing institutions 533–4 national security as basis for jurisdiction 536 Ombudsperson Office 551 Penal Code (Indonesia) 535 piracy, extraterritorial jurisdiction for 536 Security Council 540 SPSC 536, 540–2 Timor Leste Penal Code 535–6 universal jurisdiction over international crimes 536 urban studies scholars 167

V

van Schendel, Willem 68 Vandenbogaerde, Arne 428–9 Vattel, Emer de 10, 42–7, 57 vested rights theory 131–2, 135 viapolitics 175 Vietnam War 151 vigilante jurisdiction 195 Vitoria, Francesco de 60

W

Waldock, Humphrey 463–4, 467 Waldron, Jeremy 130 Walters, William 175 war crimes

customary international law 283–5 Geneva Conventions, grave breaches of 275–6, 283–6 permissive universality 284 presence of defendants 478 state immunity 478–9 state practice 285 territorial jurisdiction 285–5 universal jurisdiction 283–6 Washington Consensus 442 Westphalian legal order 10, 42–7 citizenship 61–2 colonialism 60–4 epistemology 43–4 export of Westphalian sovereignty 61–4 feudalism 44 Lotus case (PCIJ) 10, 42–7 medieval state 44 nation states, ascendency of 10 nationality 44 origins 44 Peace of Westphalia 42, 43, 45–6, 60, 83 religion 44 state sovereignty 10, 42–7 territorial jurisdiction 44–5, 61–2 Thirty Years War 42–4 Wiebe, Robert 132 Wilde, Ralph 415, 428 Winichakul, Thongchai 62 Woertzel, Robert 517–18 Wolfrum, Rüdiger 512 women and peace and security 492–3 Women’s International War Crimes Tribunal, Tokyo 150–1 world citizenship 83 World Trade Organization (WTO) 149, 302

X

Xenofonto, Stefanos 420–1

Y

Yeltsin, Boris 488 Yerodia, Abdoulaye 223

Z

Zomia 68.