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

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

Citation preview

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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

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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

39

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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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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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Socio-Legal Theory, Legal Scholarship, and Jurisdiction   165

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