Abstract
A fierce debate ensues among leading international law theorists that implicates the role of national courts in solving global challenges. On the one side are scholars who are critical of international law and its institutions. These scholars, often referred to as Sovereigntists, see international law as a threat to democratic sovereignty. On the other side are scholars who support international law as a key means of promoting human and environmental rights, as well as global peace and stability. These scholars are the 'new' Internationalists because they see non-traditional, non-state actors as appropriately enforcing international law at the sub-state level. The debate has had an impact. In recent years, the U.S. has disengaged from traditional sources of international law, and in particular, multilateral treaties. In its place, the U.S. and non-state actors use domestic laws, applied extraterritorially, to exert international influence. Following the U.S. lead, other countries now increasingly apply their domestic laws extraterritorially too. This Article addresses a topic that leading theorists have given scant attention - the rise of global extraterritoriality. It argues that the two prevailing dominant perspectives in international legal theory have miscalculated the dangers that extraterritoriality poses. In so doing, the article advocates for an approach that acknowledges changes in the international system, but also seeks to shore-up territorial sovereignty to prevent the problems that extraterritoriality creates. It thus offers a way beyond the stalemate currently existing in international law scholarship. Controversially, it concludes that international law scholars - from both the Sovereigntist and new Internationalist perspective - should embrace and reclaim multilateral international lawmaking.
Highlights
Over the past decade, international law scholars have engaged in an ongoing intellectual skirmish
Fla. 2001) (holding that defendant was not entitled to protection under the International Covenant on Civil and Political Rights (ICCPR) because Ecuador first arrested him before turning him over to the United States Drug Enforcement Agency, so any claim of ICCPR violations would have to be brought in Ecuador); see Bradley, supra note 20, at 466
The United States has withdrawn from international law and multilateral institutions
Summary
International law scholars have engaged in an ongoing intellectual skirmish. The modern Internationalists, approach these goals from a perspective different than their predecessors.[8] They are modern in their orientation because they view international norms as appropriately created and enforced at the substate or transnational level.[9] Buoyed by concepts of universal jurisdiction and loosened constraints on territoriality, the modern Internationalists find the traditional view of international lawmaking as the exclusive business of nation-states to be anachronistic Rather, they embrace transnational processes, transgovernmental networks, and cheer that national governments are no longer the sole bearers of rights and duties in the international sphere.[10] Consistent with this focus on substate and nonstate actors, the modern Internationalists have sought to deploy domestic courts around the world to implement and enforce international law.[11] Yale’s Dean Harold Koh and Princeton’s Dean Anne-Marie Slaughter are among the most well known of these scholars, while many other well-regarded academics emmizing its significance or denying altogether its reality”); Spiro, The New Sovereigntists, supra note 1, at 9–10, 13 (identifying Curtis Bradley, Jack Goldsmith, Jeremy Rabkin, and John Yoo as Sovereigntist scholars). The Article closes by exploring the implications of this critique, and by promoting a cautious return to a more traditional approach to international lawmaking
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