Extraterritorial Jurisdiction Research Articles

Catching Up: The European Court of Human Rights Approximates its Approach to Extraterritorial Jurisdiction Over Digital Surveillance to That of the Human Rights Committee

Catching Up: The European Court of Human Rights Approximates its Approach to Extraterritorial Jurisdiction Over Digital Surveillance to That of the Human Rights Committee

By What Jurisdiction? Law, Settler Colonialism, and the Geographical Assumptions of IR Theory

Abstract In this article, I consider critical writings on territory in International Relations, focusing on recent work on U.S. practices of extraterritorial jurisdiction. I suggest that, while such work has importantly traced the multiple ways in which U.S. authority often exceeds the supposed territorial boundaries of the United States, it has nonetheless failed to reckon with the contested and uneven nature of U.S. authority within such supposed boundaries. In particular, IR scholarship has failed to engage with the ways in which U.S. authority has been, and continued to be, contested by Indigenous people and nations. This failure is the product of an assumption that lies at the heart of the discipline—the assumption that Indigenous people are internal to colonizing or settler states. I suggest that the internalization of Indigenous people and Indigenous political organization that is at play in much IR scholarship is not simply a product of a generalized “state-centrism” or a product of histories of settler colonialism, writ large. Rather, at the heart of the territorial assignations and allotments of IR scholarship are assumptions about legal authority or jurisdiction—about who has jurisdiction to define and assign land, about who does not, and what law means at all. Critiquing these assumptions and their political implications, I show the importance of asking: “by what jurisdiction”? That is, what is the legal authority that we implicitly accept and assert when we designate territory in particular ways? The question insists that there are multiple laws (including multiple international laws) at play in global politics and opens up space for critical and postcolonial IR scholars to better take responsibility for their (often implicit) choices between multiple laws.

Unilateral coercive measures against Cuba, secondary sanctions and “crawling” extraterritorial jurisdiction

Is a retrospective review of the U.S. regulatory policy and sanctions imposed on Cuba, citizens and legal entities of this country, as well as against third countries and persons related to this state. The aim is to comprehensively understand the scope of such restrictive measures. The research provides a brief analysis of the impact of such measures on civil and business relations along with examples of secondary sanctions and the use of extraterritorial jurisdiction, which have a negative and long-term impact on the business partners in terms of excessive compliance with restrictions (overcompliance). The authors offer assessment of concepts of economic coercion, extraterritorial jurisdiction, as well as limits of responsibility of private and public actors for breach of legal obligations due to compliance with sanctions restrictions. Continuing the study of issues related to consequences of unlawful unilateral application of restrictive economic measures against a number of states by the U.S., the EU and imposition by countries of their jurisdiction on the parties of a dispute, including those complicated by a foreign element, in the process of dispute resolution , raised by authors' colleagues on scientific research in their published scientific articles (Tsepova E.A. Unprecedented law: Protecting the Russian financial system against the impact of sanctions. RUDN Journal of Law . 2022. Vol. 26. No. 3, 655-677; Ermakova E.P. When the “pro-arbitration” policy of the United States becomes aggressive . Eurasian Law Journal . 2023. No. 5 (180), 77-80; Rusakova E.P., Frolova E.E. Digital disputes in the new legal reality. RUDN Journal of Law. 2022. Vol. 26, No. 3, 695-704), the authors come to the conclusion that it is necessary to develop obligations directly as the duty of businesses to comply with universally recognized norms regarding property, non-discrimination, legal certainty even under the pressure of secondary sanctions and unlawfully expanding extraterritorial jurisdiction of certain countries imposing sanctions, as well as understanding the complex negative impact on the structure of all levels of the economy and sustainable social relations, as well as de jure existence of already designated legal positions on the need to gain consolidated support from all the actors of international communication to overcome the existing rupture: condemnation and recording of illegality in the public law field and forced compliance with such non-legal requirements of certain jurisdictions in the domain of private law relations.

Towards carbon neutrality in shipping: Impact of European Union's emissions trading system for shipping and China's response

Global climate change and the rising volume of world trade have made achieving carbon neutrality in shipping essential for meeting the temperature control targets outlined in the Paris Agreement. Consequently, the European Union (EU) has emerged as a strong advocate for carbon neutrality in shipping and is integrating the shipping industry into its Emissions Trading System (ETS) to enable decarbonisation. The EU's unilateral measure is expected to trigger a series of reactions from the global shipping industry. As a result, China, both a major shipping country and developing nation, could potentially attract significant international attention. This study examines the EU ETS for shipping from the perspective of international law. On one hand, the "Kyoto Protocol" does not exclude parties other than the International Maritime Organization (IMO) from taking unilateral measures to address the issue of carbon emissions from shipping. Furthermore, in accordance with the principle of national territorial sovereignty stipulated in the United Nations Convention on the Law of the Sea (UNCLOS), the EU has the right to reduce shipping emissions only within its national jurisdiction. Therefore, the EU has the legal authority to adopt an ETS for shipping, but the effectiveness of its extraterritorial jurisdiction lacks the support of international law. However, since the EU ETS for shipping applies to all ships without distinction, it may potentially violate the principle of Common but Differentiated Responsibilities (CBDR), which could have negative implications for the shipping industry in developing countries. This study focuses on China as the research subject and offers potential solutions for the country when addressing the EU ETS for shipping.

Conceptualising Extraterritoriality. Public International Law and Private International Law Considerations

Abstract The aim of this article is to analyse extraterritoriality from public international law and private international law perspectives. Although many scholars relate the exercise of extraterritorial jurisdiction to both private and public international law, in practice the topic is mainly considered as belonging to the latter. Moreover, extraterritorial jurisdiction is not a common notion under private international law. Perhaps because the extraterritorial norm is intended to regulate first and foremost state conduct and not relationships between private persons, but this vision does not take into account that the latter are frequently affected by the norm. It is argued here that from a public international law perspective, the legal framework of extraterritorial jurisdiction is unsettled and incomplete. The bottom line is that states are largely free to unfold their power, given that international law does not really regulate extraterritorial jurisdiction but only establishes the negative obligation not to trespass on state sovereignty. Thus, considering extraterritorial jurisdiction from a national perspective, in this paper, under the general framework of private international law is not only necessary but also justified. In addressing the above, this article will first analyse extraterritoriality as an exception under public international law (2). It will reflect on the lawful/unlawful grounds for the exercise of extraterritorial jurisdiction and will show that the abandonment of territoriality in jurisdictional assertions is more desirable than feasible. Then extraterritoriality will be analysed as an inherent feature of private international law, that can be traced in all three domains regulated by the private international law (3). It will also make a case on the extraterritorial reach of national constitutions.

Owning and Owing: Israel’s Law on Extraterritorial Jurisdiction Related to Jews

Owning and Owing: Israel’s Law on Extraterritorial Jurisdiction Related to Jews

Eradicating the exceptional: The role of territory in structuring international legal thought

Abstract This article examines the idea of the sui generis in international law and explores how these exceptions structure international legal thought. Exceptions are useful to international law theorizing because they create easy manageable narratives which explain situations not fitting traditional paradigms, yet as a category in their own right – specifically how they are structured and how they operate – they are often undertheorized. The two examples explored in this article are sui generis actors and the concept of extraterritorial jurisdiction. I demonstrate the foundational role played by (state-)territorialized thinking in the creation of oppositional categories: state and non-state, and the non-exceptional and exceptional exercise of jurisdiction. The category of exceptions has significantly expanded from the likes of the Holy See and irregular exercise of extraterritorial jurisdiction to a broad array of actors, such as international organizations and transnational corporations, playing growing and varied roles in contemporary law-making and governance and the regular exercise of extraterritorial jurisdiction by states. Rather than continuing with this overextended category, the article argues it is instead possible, by rethinking international law’s spatial imaginary, to first, better understand the spaces of non-state actors and regularized exercise of extraterritorial jurisdiction and second, eradicate the now overstretched legal category of ‘sui generis’.

Doctrinal Effect: Implikasi Yuridiksi Ekstrateritorial Hukum Persaingan Usaha

The Effects Doctrine creates an important basis for the application of local law outside of its territory. It reflects the understanding that in this day and age, actions taken in one jurisdiction can significantly affect other jurisdictions. The use of competition law extraterritorial jurisdiction, based on the effects doctrine, has long been debated. The purpose of this study is to discuss the application of extraterritorial jurisdiction to competition law in Indonesia. This research uses the normative juridical method to analyze legal norms and principles. The approaches used include statutory approach, comparative law approach, and case approach. The result of this research is that regulations regarding the prohibition of monopolistic practices and unfair business competition have not explicitly regulated extraterritorial norms in Indonesia. However, the Business Competition Supervisory Commission made a legal breakthrough by applying the extraterritorial principle to resolve the involvement of foreign business actors and impose sanctions on them. This article argues that Indonesia significantly needs to amend its competition law and increase cooperation with other countries to enforce competition law.

Exploring public support for extraterritorial jurisdiction over natural resource extraction: Survey insights from the United States

Over the past two decades, a number of national policies have been implemented with the aim of holding companies accountable for their actions abroad. While previous studies have examined the political processes leading to the formulation of these policies, there remains a significant gap in our understanding of public support for such measures. This paper seeks to address this gap by examining the extent to which domestic audiences endorse the concept of extraterritorial jurisdiction concerning the conditions under which natural resources are extracted abroad. The analysis presented in this paper is grounded in a representative online survey conducted in the United States, encompassing a sample size of 660 respondents.Overall, the survey findings reveal widespread public endorsement for the notion that U.S. companies should be held answerable under domestic regulations for their activities conducted overseas. When presented with the specific case of conflict minerals and various policy options, approximately half of the respondents identified the governments of end markets as one of the top three responsible actors for addressing this issue. While individuals' political ideologies exhibited a certain degree of correlation with their likelihood of supporting these policies, the link with their broader foreign policy beliefs was stronger. Those individuals who espoused a more cosmopolitan outlook and exhibited less isolationist tendencies were found to be more inclined to support extraterritorial jurisdiction policies.In conclusion, the study's results underscore the fact that the promotion of policies designed to hold domestic companies accountable for their overseas actions enjoys substantial public backing, transcending partisan lines. Furthermore, these findings emphasize the significant role played by broader conceptions of a country's role in international affairs in shaping public opinion on this matter.

Perspectives of Extraterritorial Jurisdiction for Environmental Damage in the Proposal of the European Directive on Corporate Sustainability Due Diligence

Abstract The Proposal of the Directive regarding the Corporate Sustainability Due Diligence provides new judicial protection for environmental damages and climate litigation caused by corporations, even in an extraterritorial context, considering the Directive’s scope of application. This prompts a discussion about the exercise of an extraterritorial jurisdiction by Member States’ courts. At European Union level, the titles of jurisdiction, identified in the Brussels I Recast Regulation, allow foreign victims to proceed before the court of a Member State, but only if the parent company is established in that specific Member State. Otherwise, these criteria are generally considered inadequate and insufficient. The proposed Directive seems to be a new opportunity to reform the European private international law, aligning it with the right to access to justice, as provided by Article 10 of Universal Declaration of Human Rights and Article 6 of the European Convention on Human Rights.

From a Conception of Territorial Jurisdiction to an Extraterritorial Jurisdiction: Uncovering a Tannaitic Legal Transition

Abstract: A legal system may limit its jurisdiction, so that its laws apply exclusively within its territorial borders. In an alternate conception, a legal system may opt to apply its laws extraterritorially, so that its subjects are bound to them in any place they find themselves. The theoretical foundations of these two conceptions of law are profoundly distinct. Using this jurisprudential framework, this article explores anew the transition from the biblical (pentateuchal) conception of law to the conception of law found in the writings of the early rabbis. It then examines whether this legal difference corresponds with a parallel theological transition. Revealing the possible relationships between these two transitions makes clear that theology and law are intertwined.

CONTRACTUAL TERRITORIAL JURISDICTION IN THE CIVIL PROCEDURE OF THE REPUBLIC OF KAZAKHSTAN: QUESTIONS OF THEORY AND PRACTICE

The right to judicial protection is directly related to the provision of subparagraph 3 of paragraph 3 of Article 77 of the Constitution of the Republic of Kazakhstan, that no one can change the jurisdiction provided for by law without his consent. The correct determination of the jurisdiction of a particular civil case to a particular court is a prerequisite for exercising the right to appeal to the court and ensuring access to unhindered judicial proceedings. The article is devoted to the issues of reforming the institution of jurisdiction in civil proceedings. The relevance of the topic is due to changes in the current Civil Procedure Code of the Republic of Kazakhstan, as well as the lack of scientific research concerning the study of the updated institute of jurisdiction in civil proceedings. In the theory of civil procedural law, there is no generally accepted notion of contractual extraterritorial jurisdiction. It is necessary to consider the fact that it is the rules of jurisdiction that create serious difficulties in law enforcement. The problem of the correct determination of jurisdiction is very important for the judiciary. The purpose of writing this scientific article is to analyze changes in civil procedural legislation on the issue of contractual extraterritorial jurisdiction. Methodological basis: systematic, descriptive, comparative legal. Private scientific methods were also used: the legal-dogmatic method of interpreting legal norms.

The Export of Goods Used for Torture and the Applicability of Article 3 echr

Abstract Article 3 of the European Convention on Human Rights (echr or Convention) is currently not understood to apply when Council of Europe member states export goods that could be used for torture, the death penalty, or other ill-treatment in third states. In 2021, the Committee of Ministers of the Council of Europe recommended states to take measures against trade in such goods, also recalling Article 3 echr. Following an analysis of relevant rules in the EU Anti-Torture Regulation, the UN Convention Against Torture, and the echr, the paper demonstrates how Article 3 echr may be interpreted so as to apply to export. As the person (at risk of) suffering torture, the death penalty, or other ill-treatment will be located abroad, the paper examines three alternative models for extraterritorial jurisdiction. It concludes that, at a minimum, the Convention could accommodate an obligation to investigate after an export has taken place.

Beyond the North–South divide: Litigation's role in resolving climate change loss and damage claims

AbstractWithin the international climate regime, legal aspects surrounding loss and damage (L&D) are contentious topics, implicating liability, compensation and notions of vulnerability. The attribution of responsibility and the pursuit of redress for L&D present intricate legal and governance challenges. The ongoing debates under the United Nations Framework Convention on Climate Change are characterized by a pronounced North–South divide and have done little to provide tangible support to those most affected by L&D. This apparent neglect has prompted exploration of alternative avenues for climate harm redress. The burgeoning field of litigation for liability and compensation of climate harm holds potential significance for L&D discourse, but its efficacy, especially in compensation claims relating to the adverse effects of climate change, is uncertain. There is, as yet, no precedent of plaintiffs succeeding in an L&D case, with numerous legal, evidentiary and practical barriers persisting, particularly for Global South plaintiffs aiming to hold Northern governments and actors accountable. This article scrutinizes recent advances in climate litigation and their potential to facilitate or obstruct L&D litigation. Focusing on seminal L&D cases, namely, Lliuya v RWE and Asmania et al v Holcim, we present a novel legal critique of climate litigation's capacity to assist climate‐vulnerable States, populations and communities in pursuing redress for L&D, based on pertinent case law and an examination of overarching issues of attribution and extraterritorial jurisdiction.

Migration Deals Seen through the Lens of the ICESCR

Abstract Human rights violations in the context of migration deals have received considerable attention, especially when it comes to more frequently explored human rights such as the principle of non-refoulement, the right to life, and the prohibition on torture. However, such deals also have a negative impact on the socio-economic rights of people on the move, who often live in dire conditions and lack access to education, health care, and work. This article therefore seeks to answer the following question: to what extent do European Union Member States have obligations under the International Covenant on Economic, Social and Cultural Rights towards people on the move contained in third countries as a result of migration deals? The analysis shows that EU Member States may have two types of obligations and examines their nature and scope. First, EU Member States have direct obligations when exercising extraterritorial jurisdiction. This is the case when they can take reasonable measures to avoid reasonably foreseeable human rights violations that result from migration deals. Secondly, they may also have global obligations within the framework of international assistance and cooperation. While the nature and scope of these obligations remain unclear, this article explores whether EU Member States have an obligation to provide international assistance and cooperation to third countries that host people on the move as a result of migration deals. It also examines whether EU Member States can comply with their obligations of international assistance and cooperation by cooperating with third countries on migration control. The article uses the examples of European migration deals with Turkey and Libya to illustrate the analysis.

The Change of the Court’s Case Territorial Jurisdiction (Venue) – a Tool for Ensuring the Accessibility of Administrative Justice

The article is devoted to the study of the institution of change of territorial jurisdiction (venue) in administrative cases. The relevance of the topic is determined by the absence of specialized scientific research in the theory of administrative justice, devoted to studying the peculiarities of applying extraterritorial jurisdiction and its role in ensuring access to the administrative judicial process. The purpose of the article is to investigate issues related to the possibility of changing territorial jurisdiction (venue) in administrative cases, to determine the possibilities and limitations of applying this tool in order to ensure the accessibility of administrative justice for individuals. The research is based on the systemic-structural method, which allows for a comprehensive study of the procedure and grounds for changing territorial jurisdiction (venue) in administrative cases under martial law. It also reveals the connection and interaction of the principle of extraterritorial jurisdiction with the principles of accessibility of administrative justice. The dialectical, formal-legal, analysis and synthesis methods, among others, were also applied.The scientific article examines the issue of ensuring the accessibility of administrative justice through the prism of changing the territorial jurisdiction (venue) of court cases. The author examines the concepts and types of jurisdiction of administrative cases with a focus on the legal nature of territorial jurisdiction (venue) in administrative proceedings. The article is devoted to the study of the possibility to change the territorial jurisdiction (venue) of administrative cases. The advantages and disadvantages of using this mechanism and its role in ensuring access to justice in administrative cases are determined. Based on the application of the system-structural method of research, a comprehensive study of the procedure and grounds for changing the territorial jurisdiction(venue) of administrative cases under martial law was carried out, the connection and interaction of the principle of extraterritorial jurisdiction with the principles of accessibility of administrative justice was revealed. The content of legal acts dedicated to the regulation of the procedural order and features of changing the territorial jurisdiction (venue) of cases in administrative proceedings was analyzed. The practice of applying the instrument of changing territorial jurisdiction (venue) in cases considered by administrative courts to ensure the accessibility of administrative justice during emergencies has been studied. It was concluded that the application of extraterritorial jurisdiction of administrative cases is an effective tool for ensuring the accessibility of administrative justice, a means of ensuring the constitutional right to judicial protection and preventing its restriction even in emergencies.

CROSS-BORDER COMPETITION FRAMEWORK: IMPLEMENTATION OF THE EXTRATERRITORIALITY PRINCIPLE IN THE APPLICATION OF COMPETITION LAW IN INDONESIA UNDER LAW NUMBER 5 OF 1999

Abstract
 In the context of the application of business competition law in Indonesia, Law Number 5 Year 1999 has a scope that applies in the territory of Indonesia. This law regulates the prohibition of monopolistic practices and unfair business competition in the country to protect consumers, promote fair competition, and encourage economic efficiency. This research uses the normative juridical method to analyze legal norms and principles. The approaches used include the statutory approach, comparative law approach, and case approach. The analysis shows that Law No. 5/1999 on Competition Law does not regulate extraterritorial jurisdiction for foreign companies. Supreme Court Regulation Number 03 of 2005 and KPPU Regulation Number 2 of 2023 also do not contain extraterritoriality clauses in competition law. This lack of legal certainty will affect the implementation of the decision, even though there is a legally binding decision declaring violations by foreign companies. KPPU cannot execute without a strong legal basis. Indonesian court decisions are only valid in the Indonesian jurisdiction. To carry out competition law enforcement efficiently and effectively, bilateral or multilateral cooperation with other countries is required.

The Committee on the Rights of the Child’s Admissibility Decisions in the ‘Syrian Camps Cases’ against France: a Critique from the Viewpoint of Treaty Interpretation

Abstract The article deals with three admissibility decisions by the United Nations Committee on the Rights of the Child where it found that it was competent to consider the merits of individual complaints against France submitted by relatives of French children staying in Syrian prison camps. Paving the way for the Committee subsequently to hold that France had violated the United Nations Convention on the Rights of the Child, the decisions are noteworthy for the Committee’s expansive notion of extraterritorial jurisdiction, which also has been adopted in other cases on the same subject, but also beyond. The article highlights two methodological features of the decisions that are closely related, notably their departure from generally accepted principles of treaty interpretation and their alignment with arguments submitted by the third-party interveners. It is argued that these features effectively undercut the authority of the Committee’s practice as source material when subjecting the treaty to legal interpretation.

Research and Countermeasures of Long-Arm Jurisdiction in the United States

The long-arm jurisdiction of the United States is a policy of applying laws within the region to those outside the region. Through the evolution of different periods, it has gradually changed from a tool for managing affairs outside the region to a weapon for hegemony and turned into a political choice to serve national interests. As trade has globalized and America’s long-arm rule has intensified, more and more countries and multinational companies have been hurt. At present, the international research on the long-arm jurisdiction of the United States is insufficient, and the defense mechanism to deal with the improper extraterritorial jurisdiction in the legal system of some countries is not perfect. This paper will study the nature and characteristics of the long-arm jurisdiction of the United States through its development history, and put forward countermeasures against the improper long-arm jurisdiction of the United States according to the international situation and the defects of the legal system of various countries. The fundamental measures are to improve the defense mechanism in the legal system and actively promote the extraterritorial application of domestic law while forming alliances with other countries to strengthen the resistance and try to reach bilateral treaties to prevent unnecessary disputes.

Unilateral Sanctions in the Context of Modern International Law

The author discusses the modern international legal framework governing the application of sanctions. The author focuses on the following issues: international and regional sanctions in the context of the UN Charter, restrictions on sanctions regimes, sanctions in humanitarian law, the legitimacy of unilateral economic sanctions. The methodological base of this work is a systematic approach, which allows to consider sanctions as part of the modern international legal system. As a result of the study, it was revealed that within the framework of the existing international legal system, only the UN Security Council is authorized to impose sanctions in order to ensure global peace and security. The resolutions of the UN Security Council on the issue of the application of restrictive measures are dominant in comparison with the decisions of other international bodies and the obligations of member countries under international treaties. The legitimacy of applying regional sanctions is limited by the statutes of regional organizations. The novelty of the study lies in a comprehensive consideration of the reasons why unilateral sanctions are a violation of international law. Unilateral economic restrictions violate the free trade regime of the WTO and the principle of non-discrimination that underpins the GATT. They represent a violation of the fundamental principles of sovereign equality, as well as the principle of non-interference in the internal affairs of other states. As a result of the application of economic sanctions by certain states, extraterritorial jurisdiction is manifested, which creates a dangerous precedent for international law.