Symposium on ExtraTerritorial Jurisdiction

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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.

Jacques Hartmann, from the Southern Danish University, who contributed his first post to EJIL:Talk! this week, returns next week to discuss a recent decision of the European Court of Justice dealing with the legality of the extraterritorial application of EU’s Emissions Trading Scheme. As he discusses, one of the most contentious aspects of the EU’s scheme, which is aimed at combating climate change, is the application of EU regulations to foreign airlines with respect to their activity outside the EU. This dispute has led to a threat of sanctions against the EU by many countries and media reports suggest there is a trade war looming and that the dispute might even be a deal breaker for global climate change negotiations. Some countries, including China, have forbidden their airlines from participating in the EU scheme.

Barrie Sander, who also contributed his first post to EJIL:Talk! this week, will also return next week to continue his discussion of the Kiobel case in the US Supreme Court. Next week, he will turn to the question of universal civil jurisdiction. Rather surprisingly, the US Supreme Court decided, propio motu, to ask the parties to submit additional briefs on the question of the extraterritorial application of the Alien Tort Statute (see post at Lawfare here). If the Court were to decide against extraterritoriality here, it would put paid to three decades of litigation under the Act. It is important to note that even before the Supreme Court’s request, Germany, the UK and the Netherlands, had already filed amicus briefs in the case objecting to the extraterritorial application of the Alien Tort Statute (see the post by former US State Dept Legal Adviser, John Belliger over at Lawfare, here,  with links to briefs).

Christopher Gevers of the University of KwaZulu Natal will also contribute a post discussing a recent South African case which raises questions of universal (criminal) jurisdiction. He will discuss a case in which attempts are being made to require South African prosecutors to open an investigation into alleged crimes against humanity committed in Zimbabwe. That case, and Christopher’s post, raise questions about the scope of universal jurisdiction even where it is accepted that States have such jurisdiction for international crimes. Many States, like South Africa, require the presence of an accused person before proceedings can be initiated against him or her. But does this presence requirement mean that it is not permissible to investigate the alleged crimes without presence? If an investigation cannot be opened without presence, would the exercise of universal jurisdiction ever be possible in practice?

These three contributions demonstrate that disputes about the exercise of extraterritorial jurisdiction arise in quite a broad range of contexts. First of all, there are a broad range of countries involved in these disputes. The disputes are not confined to the typical Western Europe vs United States context of the late 20th century, and even the Europe vs US disputes are not unidirectional since Europe can also be the object of complaints. Also, these posts demonstrate that debate about extraterritoriality arises not only with regard to criminal proceedings but also in civil proceedings and in respect of administrative regulation. Finally, there was a time when disputes about some forms of extraterritorial jurisdiction were really disguised forms of disputes about the substantive rules being applied y States (eg objections to US treble damages for arise antitrust violations, or objections to US sanctions on Cuba and Iran). However, the three cases to be discussed next week all relate to areas in which there is some sort of international regulation (international criminal law, human rights law, climate change). However, that has not stopped the disputes about unilateral application of such law.

We hope you will take part in the conversation engendered by this symposium.

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