EJIL:The Podcast! Episode 17 – “What’s wrong with the international law on jurisdiction?”

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What conduct occurring where are states allowed to regulate? The international law on jurisdiction provides part of the answer. But international lawyers use different images when conceptualising the geographical reach of states’ jurisdiction to prescribe their laws. In this podcast, the two contenders in a debate in issue 33(2) of the European Journal of International Law engage with each other’s images and their ensuing conclusions as to the international law of jurisdiction. Nico Krisch posits that the traditional image is inappropriate, that in practice jurisdiction – at least when it relates to global markets – has come “unbound” and that this unbound jurisdiction has allowed economically powerful states to exercise global governance in a hierarchical fashion, triggering fresh demands for public accountability. Roger O’Keefe replies that this supposedly traditional image was never his understanding, argues that the current law of jurisdiction is fit for purpose and cautions against blaming this law for the perpetuation of the world’s economic inequalities.

 

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    Paola Gaeta says

    October 14, 2022

    I have found this debate really fascinating. Of course, Sarah Nouwen is right when she says that often how we are taught matters a lot. Indeed, saying (as Nico does) that the traditional view on jurisdiction under international law is that it is 'territorial' with extra-territorial exceptions (referring to James Crawford) is debatable. The matter was highly controversial in the PCIJ in the Lotus case (can one say that the Court was expressing the 'traditional' approach of international law on the matter?), and in the end the Court took the view (with the casting vote of the President) that states are not limited by territory except in the case of enforcement jurisdiction. Clearly Lotus is one century ago, but listening to my learned colleagues I see that the shadows of that debate in the PCIJ are still here. Extra-territorial (prescriptive) jurisdiction can be seen as one of the possibility customary international law offers among others heads of jurisdiction (as Roger maintains) or an exception to the rule on territorial jurisdiction (as Nico says). The Anglo-american tradition 'traditionally' tends to favor the second approach, which explains also the enormous expansion of the notion of territorial jurisdiction by their end when they in fact want to regulate extra-territorial situations. What I found however even more fascinating in this debate between Nico and Roger is their fundamental disagreement on what 'international law' is. It seems to me that for Nico, factual exploitation of positions of power is in the end what matters the most in identifying hierarchies and structures in the law, while for Roger the fact that there are factual exploitation of positions of power is nothing new under the sun. After all international law processes allow this to occur and allow for change if states so desire. It has been wonderful to see different approaches to international law in action, and I would like to thank Nico and Roger (and Sarah) for offering such a wonderful opportunity to pause and reflect on a foundational matter of international law.