Jurisdictional Hierarchies between Form and Fact: A Rejoinder to Roger O’Keefe

To what extent is the law of jurisdiction implicated in (hierarchical) structures of global governance? My article, ‘Jurisdiction Unbound: (Extra)territorial Regulation as Global Governance‘, pursues this question and traces how the current law of jurisdiction, quite in contrast with the often territorial, sovereignty-based imagery surrounding it, is highly permissive, especially when it comes to extraterritorial business regulation. It seeks to demonstrate how this leads to an assemblage of uncoordinated jurisdictional spheres and how it facilitates a structure in which very few economically powerful states (or blocs of states, such as the EU) are able to ‘govern’ important areas of global economic governance in a unilateral fashion. This finding, in turn, raises key normative issues about accountability and self-government that are not normally associated with the law of jurisdiction but become increasingly pressing in today’s globalized world.

Roger O’Keefe, in his detailed and characteristically thought-provoking reply to my piece, takes issue with some of my main claims and urges a less gloomy picture which reflects better the fact that ‘the international law of prescriptive jurisdiction lends itself as much to cooperative national regulation to secure transnational public goods as it does to economically-facilitated regulatory unilateralism’. I will come to this important point in a moment, but I should first highlight that, on many of the points raised by O’Keefe, we are very much in agreement (though his formulations may be more eloquent, as he usually is). As a matter of the current state of the law of jurisdiction, we concur that international law today allows for a wide variety of measures of extraterritorial reach or territorial extension, and that this is in part the result of a process of redefinition which has taken place over the past decades. We would also agree that, as a matter of law, the different jurisdictional bases stand alongside each other on an equal footing and that, from a doctrinal perspective, there is no hierarchy either of such bases or of countries using them.

Our disagreements then concern less the characterization of the law as it stands than the consequences which flow from it. This relates in the first place to the contrast between the permissive law of jurisdiction and the frame in which it is typically set. In the article I point to many instances in which international lawyers represent jurisdiction as territorially grounded, as constraining and as ultimately protective of the sovereign equality of states. This is widespread in contemporary textbooks, and Vaughan Lowe’s concise summary in 2015 is exemplary here: ‘The basic principle is that jurisdiction is territorial. … It is an aspect of territorial sovereignty, and of the right of self-determination…’ (p. 86). Lowe does, of course, allow for exceptions, but this representation captures a widespread sense that the law of jurisdiction reflects basic elements of a horizontal international legal order. O’Keefe acknowledges the ‘rhetorical tendency … to overstate in some prefatory remark the normative significance of territory’, but he downplays it and instead emphasizes the fact that the existence of exceptions to the territorial orientation is generally accepted by observers. With this, in my view, he underestimates the force of the frame for shaping our thinking about the problématique of jurisdiction. If we understand jurisdiction to be structurally constraining – focused on territoriality – we will tend to worry about creating space for solving common problems. If, on the other hand, we understand it as permissive – even ‘unbound’, as I argue – we will become interested in how to contain it. ‘Rhetorical tendencies’ and ‘prefatory remarks’ are not inconsequential – they structure the associations and reactions readers will have.

The second, and more practically consequential, disagreement between us concerns the factual consequences of the current, ‘unbound’ regime of jurisdiction. This has to do, on the one hand, with the characterization of the resulting picture as an unstructured ‘assemblage’ (a notion I borrow from Saskia Sassen’s work). O’Keefe challenges this imagery on the grounds that the relation of different states’ jurisdictional claims is actually legally regulated – by a rule placing them on an equal footing. As already mentioned, I agree that this rule exists, but I don’t share O’Keefe’s assessment that it provides much structure; I see it instead as allowing for a freedom of all to pursue their ends as they please. It is somewhat similar to a traffic rule that allows drivers to choose the side of the road they drive on – even if this is unmistakably a rule, it does not structure traffic and leads to considerable disorder unless drivers find a way to cooperate. The same holds true for jurisdiction: the parallel existence of multiple jurisdictional bases leads to an unstructured field unless governments or other actors find ways to generate order in other ways.

A similar disjunction between formal rules and factual consequences comes to the fore also in O’Keefe’s assessment of the jurisdictional regime’s ability to generate cooperation. I think he is actually right when he emphasizes, as in the quote above, that the law of jurisdiction lends itself to cooperation for common goods, and that it ‘in no way prevents [] states from consensually, collectively and cooperatively deploying to transnational public ends’. There is no doubt that the law of jurisdiction does not prevent states from cooperating. But does it facilitate such cooperation, or does it make cooperation factually less likely? In order to answer this question, we cannot simply look at the content of the rules but need to broaden our gaze to the social, political and economic context in which they are embedded. Formal equality means very different things for people in different circumstances, as brought out so nicely in Anatole France’s remark that ‘[t]he law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’ Unbound jurisdiction operates in a similar way: among relative equals, it is a mechanism for mutually overlapping regulation with a resulting incentive for cooperation – as we can observe, up to a point, between the US and the EU. Among unequal powers, however, it facilitates domination by allowing the more powerful to make ample use of their wide jurisdictional spheres while the weak will often be unable to regulate effectively. O’Keefe seems to concede this when he says that ‘[n]o such reality is inherent in the international law of jurisdiction to prescribe. Any such reality is a contingent function of economic power’. But that is the point. Few things are ever ‘inherent’ in the law, and most of its effects are contingent on the social context in which it operates. The rules of membership in the 19th century family of nations were ‘inherently’ equal – it was only because they functioned in a context of very differently structured polities, with very unequal power, that they came to exclude large parts of the world. Investment agreements offer fair and equitable treatment to investors from rich and poor countries alike – its highly skewed effects result only from the factual (and of course contingent) circumstance that capital is concentrated in some places, not in others.

The particular effects of today’s permissive jurisdictional regime – the facilitation of (extra)territorial global governance by a few countries – result from inequalities in global society, but also from the increased economic links in a globalized economy and from the factual circumstances of an ever more fractured world. As we know, treaty-making (especially for multilateral treaties) is stagnating and cooperation is increasingly difficult as the unipolar situation of the 1990s has given way to the more complex, multipolar and ideologically diverse international society. The possibility of unilateral action, opened up by unbound jurisdiction, makes cooperation under such circumstances more, rather than less, difficult – why would a country make the difficult compromises involved in treaty negotiations if it can just as well go it alone? Global competition regulation is a good example: here, the US consistently resisted attempts to establish competition rules in the WTO on the background of its own, flourishing antitrust regulation with global reach. I have traced this dynamic elsewhere in greater detail. The upshot of this is that the current, permissive jurisdictional regime may not formally prevent cooperation, but in the factual circumstances in which it operates, it allows a group of select few countries to govern globally – and it reduces the incentives of these few to enter into cooperative agreements.

These effects are, of course, contingent – they depend on the configuration of international society at a given moment. The changes currently underway, especially towards greater multipolarity, may eventually also lead to new attitudes towards cooperation, with a need for core users of wide jurisdictional bases to come to agreements with other such users. Yet this is a matter for the future. In today’s world, characterized by major differences in economic power, unbound jurisdiction has, despite its perhaps egalitarian appearance, very unequal effects and leads to forms of oligarchical global governance in many areas – not just by the US and the EU, but potentially also other powers, including China. With the article I urge readers to recognize such effects – and to start thinking about their consequences from a normative standpoint. Governance triggers demands for public accountability, and it needs to find reconciliation with claims to self-government by affected citizens and countries. This does not need to detract from the fact that unilateral governance often actually produces public goods for many. But it reminds us that, whatever the benefits for the people, government also always has to be by the people. In the current jurisdictional regime, it is the latter aspect that is often missing.