One of the topics that will be taught in any basic course on public international law is “Jurisdiction”. By this is meant the jurisdiction of States and as Rosalyn Higgins explains in her book Problems and Process: International Law and How We Use It, questions of State jurisdiction are questions relating to allocation of competence. The question is which State has the competence to regulate persons, property and events. Questions of jurisdiction will often arise, in the first place, in the relations between States and private persons, as those persons argue that this or that State ought not to apply its law or its judicial powers to the activities of that person. However, since jurisdiction is about the allocation of competence between States, jurisdictional disputes often, and almost inevitably, become inter-State disputes.
There were numerous inter-State disputes on jurisdiction from the 1970s till the end of the 20th century about the United States’ application of the effects doctrine to economic regulation (primarily competition or anti-trust law) and about US extraterritorial application of its sanctions laws (eg sanctions on the Soviet Union in the early 80s or on Cuba or Iran in the mid 90s). There appeared to be a lull on those types of disputes and accommodations seem to have been reached. However, the rise of international criminal law at the end of that century and the increased resort to universal jurisdiction has led to a different set of inter-State disputes about extraterritorial State jurisdiction. In this area, it is European States -the main complainants in disputes with the US – that have most often been the object of complaints of overreaching. Those complaints have been voiced (often very loudly) by African States, by Israel, by Latin American States, and also by the US. Recent developments suggest disputes over jurisdiction are not going away and are as prevalent as ever. In some contexts it is thought that the adoption of international law rules in an area of law would reduce the disputes about jurisdiction (since harmonization of substantive law means that whoever does regulate would apply the same rules anyway). But the debates surrounding the application of universal jurisdiction for international crimes shows that acceptance of common international law rules on matters of substance does not necessarily mean that there won’t be questions as to who gets to interpret, apply and enforce those roles.
Next week, EJIL:Talk! will be hosting a symposium highlighting recent developments with regard to extraterritorial jurisdiction. Contributions to the symposium will focus on recent cases in three different jurisdictions each of which raises questions about the proper scope of extraterritorial jurisdiction.
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